Citation Nr: 1303152 Decision Date: 01/30/13 Archive Date: 02/05/13 DOCKET NO. 12-26 842 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Gainesville, Florida THE ISSUE Entitlement to reimbursement or payment for unauthorized medical services rendered in connection with the Veteran's transportation to, and treatment at, The Villages Regional Hospital (TVRH) on April 1, 2012. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had active service from December 1952 to August 1956. This matter came before the Board of Veterans' Appeals (Board) on appeal from a May 2012 decision by the Medical Administration Service (MAS) of the Gainesville, Florida, VA Medical Center (VAMC), which denied the Veteran's claim for reimbursement or payment for unauthorized medical services rendered on April 1, 2012. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Unauthorized medical services rendered at TVRH on April 1, 2012, did not involve circumstances in which a prudent layperson would have reasonably expected that delay in seeking immediate medical attention for the initial evaluation and treatment would have been hazardous to life or health. CONCLUSION OF LAW The criteria for reimbursement or payment for unauthorized medical services rendered at TVRH on April 1, 2012, have not been met. 38 U.S.C.A. §§ 1725, 1728 (West 2002 & Supp. 2012); 38 C.F.R. §§ 17.120, 17.1000-17.1002 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) ; 38 C.F.R. § 3.159(b). In a letter dated in August 2012, the Veteran was notified of the claimant was advised of the information necessary to substantiate the claim at issue. He was also informed of his and VA's respective obligations for obtaining specified different types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). He was informed of the prudent layperson emergency care standard. He was informed of the revisions in the law affecting 38 U.S.C.A. §§ 1725 and 1728. He was informed that admission of certain Veterans to a private facility for emergent care may be considered to have been authorized in advance when VA was notified within 72 hours of admission. Information regarding ratings and effective dates is not relevant to this appeal involving reimbursement for medical expenses. Although this notice was not provided to the Veteran until after the initial adjudication, as well as the issuance of the statement of the case, there is no indication that the Veteran was prejudiced by the notice delay. In this regard, the information and arguments provided in his substantive appeal, dated after the notice letter, had already been mentioned in the June 2012 notice of disagreement; he did not provide any new contentions or information subsequent to the notice letter. Under the VCAA, the VA also has a duty to assist the Veteran by making all reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). All records pertaining to the treatment at issue have been obtained. VA treatment records dated immediately before and after the treatment at issue have been obtained as well. There is no indication of the existence of any potentially relevant evidence which is not of record. Thus, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Significantly, neither the appellant nor the representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Analysis The Veteran seeks payment or reimbursement for medical expenses incurred in the course of treatment rendered on April 1, 2012, in the emergency department of TVRH. The MAS considered this claim under the Millennium Health Care and Benefits Act, Public Law 106-117, which provides for the reimbursement of non-VA emergency treatment for which the Veteran is personally liable in certain circumstances, regardless of service-connected status, if specified criteria are met. 38 U.S.C.A. § 1725; 38 C.F.R. § 17.1002. Amendments to the regulations pertaining to reimbursement for unauthorized medical care, effective January 20, 2012, which pertain primarily to the question of feasibility of VA facilities after stabilization, are not relevant in this decision. To be eligible for reimbursement under the Millennium Act, all of the following conditions must be met: (a) The emergency services were provided in a hospital emergency department or a similar facility providing emergency care; (b) A prudent layperson would have reasonably expected that delay in seeking immediate medical attention for the initial evaluation and treatment would have been hazardous to life or health; (c) A VA or other Federal facility was not feasibly available and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson; (d) The claim for payment or reimbursement for any medical care beyond the initial emergency evaluation and treatment is for a continued medical emergency of such a nature that the veteran could not have been safely discharged or transferred to a VA or other Federal facility (the medical emergency lasts only until the time the veteran becomes stabilized); (e) The veteran was enrolled in the VA health care system at the time the emergency treatment was furnished and had received medical services under 38 U.S.C. Chapter 17 within two years before the non-VA emergency treatment; (f) The veteran is financially liable to the non-VA provider of the emergency treatment; (g) The veteran has no coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the emergency treatment; (h) The veteran has unsuccessfully exhausted claims reasonably available against a third party in the case of an accident or work-related injury; and (i) The veteran is not eligible for reimbursement under 38 U.S.C.A. § 1728. 38 C.F.R. § 17.1002 (2012). Here, the claim was denied because the MAS found that the criteria for an emergency had not been met. 38 C.F.R. § 17.1002(b). However, the bills submitted in connection with the treatment indicate that the Veteran has coverage under Medicare Parts A and B, and that partial payment has been made by Medicare. Under 38 C.F.R. § 17.1002(g), reimbursement may not be provided if the veteran has coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the emergency treatment. A "health-plan contract" includes Medicare. 38 C.F.R. § 17.1001(a)(2) (2012) (an insurance program under 42 U.S.C.A. § 1395; this includes Medicare). Thus, it appears that the claim could be denied on this basis. Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision means that all of the conditions listed in the provision must be met). Nevertheless, the Board will decide this claim based on whether the criteria for an emergency were present, because that is the basis on which the RO decided the claim, it appears that the claim may properly be considered under 38 U.S.C.A. § 1728, and the Veteran's representative has argued that the Veteran's claim should be considered under 38 C.F.R. § 17.52. These alternative bases also require the existence of an emergency, but without the limitation on other insurance. First, reimbursement for unauthorized medical expenses may be granted pursuant to 38 U.S.C.A. § 1728. Under that law, in order to be entitled to payment or reimbursement for medical expenses incurred without prior authorization from VA, all of the following must be shown: (1) That the treatment was either for an adjudicated service-connected disability, or for a nonservice-connected disability associated with and held to be aggravating an adjudicated service-connected disability, or for any disability of a veteran who has a total disability permanent in nature resulting from a service-connected disability (or, under certain circumstances, when participating in a course of vocational rehabilitation under the auspices of VA); and (2) that a medical emergency existed of such nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention for the initial evaluation and treatment would have been hazardous to life or health; and (3) that VA or other Federal facilities were not feasibly available, and an attempt to use them beforehand or obtain prior VA authorization for the services required would not have been reasonable, sound, wise, or practicable, or treatment had been or would have been refused. 38 U.S.C.A. § 1728(a); 38 C.F.R. § 17.120. The Veteran was granted a 100 percent rating for service-connected schizophrenic reaction, undifferentiated type, in a November 1967 rating decision, effective in December 1966. Although he was never formally adjudicated as permanently and totally disabled due to the condition, a disability which has been continuously rated at a specific level for 20 or more years will not be reduced except upon a showing that such rating was based on fraud. 38 C.F.R. § 9.951(b) (2012). Neither the law nor the regulation specifically states whether the requirement that treatment for any disability of a "veteran who has a total disability permanent in nature" resulting from a service-connected disability means his legal status or a medical finding. For purposes of this decision, the Board will assume that the Veteran's protected 100 percent rating for service-connected schizophrenic reaction meets the requirement of a "total disability permanent in nature resulting from a service-connected disability;" thus, the first requirement is satisfied. In determining whether a medical emergency was present, the pertinent statute has been revised to incorporate the "prudent layperson" standard, as defined in 38 U.S.C.A. § 1725. See 38 U.S.C.A. § 1728(c) (West Supp. 2012). Specifically, the conditions for an emergency are defined as follows: Emergency treatment . . . was rendered in a medical emergency of such nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. This standard is met by an emergency medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) that a prudent layperson who possesses an average knowledge of health and medicine could reasonably expect the absence of immediate medical attention to result in placing the health of the individual in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. 38 C.F.R. § 17.120(b); see also 38 C.F.R. § 17.1002(b) (2012). As such, medical evidence is not necessary to establish the existence of an emergency on admission under the prudent layperson standard. Swinney v. Shinseki, 23 Vet. App. 257 (2009). In this case, according to a Marion County Fire-Rescue (ambulance) report, on April 1, 2012, there was a 911 call reporting that there was a "sick person/not alert" at the Veteran's address. The "run type" was noted to be "emergency." The chief complaint was of leg pain. According to the narrative summary, the ambulance responded ot he Veteran's address with a reference of "sick person/not alert." On arrival, a 75-year old male was sitting on a chair complaining of leg pain that started approximately 25 minutes earlier. He stated that he was sitting in the chair and tried to get up when he started to experience severe pain in both of his legs near his groin area. He stated that he has a history of DVTs (deep vein thrombosis), and the pain felt just like when he got them. He described the pain as cramping, and rated it at 10/10, with no radiation. He denied shortness of breath, chest pain, dizziness, nausea or vomiting. Initial neurological, respiratory, cardiovascular, and vital signs were essentially normal. Initial sinus rhythm was normal. Range of motion was present in all four extremities, with equal pulses and reflexes. He was given intravenous saline. He was moved to the ambulance by stretcher and transported in a sitting position to TVRH. During the less than 1/2 hour trip to the hospital, the Veteran reported that his pain went away completely, and was rated 0. TVRH emergency department triage notes report that the Veteran complained of bilateral upper leg pain, and wanted to be evaluated for DVT. The physician's evaluation noted that there was no recent injury, that the maximum severity in the emergency department was moderate, and that he had had similar symptoms previously. On examination he had mild hypertension. He had a past history which included DVT. He was in mild to moderate distress. The lower extremities were normal to inspection, with no pedal edema and normal range of motion. He was tender in the bilateral inner thighs. A venous ultrasound was obtained, which disclosed no DVT of the right lower extremity, and persistent, extensive DVT on the left without significant change when compared with the most recent prior examination of January 2012. The impression was bilateral inner thigh pain, chronic DVT of the left thigh, and INR (internationalized normalized ratio for anticoagulation monitoring) of 2.06. The disposition was discharge, improved. The health insurance claim form submitted to VA by the ambulance authority noted acute onset of severe, non-traumatic bilateral leg pain, patient's pain level 10. He reported a history of DVT, required cardiac monitoring, and IV fluids were administered. VA treatment records show that the Veteran receives outpatient care in a VA outpatient clinic in The Villages. However, April 1, 2012, was a Sunday, and neither VA nor the Veteran has suggested that the outpatient clinic was feasibly available; therefore, it is presumed to have been closed that day. VA treatment records at The Villages show that on April 2, 2012, he called and stated that he needed to be seen in CAU (Clinical Access Unit) that day. He said that the previous day he had visited the emergency room at The Villages Hospital due to excruciating pain in the legs. He was given an appointment, and his wife said that TVRH told him that he had DVT. When seen by a nurse, the chief complaint was that he had complained of bilateral upper leg pains the previous day, and had gone to TVRH via 911. He stated that he had been advised that he had blood clots in both legs but they were not able to determine if they were new or existing blood clots. The Veteran said that he had been instructed by TVRH to come to the outpatient clinic for further evaluation. He was seen in urgent care, again reporting that he had bilateral upper leg pain the previous day. He said he had called 911 and had been evaluated at TVRH. Bilateral Dopplers were performed which demonstrated no DVT in the right leg and persistent, extensive DVT in the left leg. INR was 2.06 yesterday. He had no complaints today but was concerned that they would cancel his upcoming surgery in GNV (Gainesville). On examination, he moved all of his extremities, and was fully ambulatory. He had chronic venous stasis in both lower extremities. He had moderate varicose veins. Regarding his DVT, it was noted that in reviewing the previous day's hospital records, no further evaluation was warranted today. DVT in the left leg had been stable since January 2012 and INR was 2.06. Records were given to him so that he might present them at his pre-operative evaluation the following week. He was instructed to follow-up with primary care if his symptoms were not improving, but that if his symptoms worsened, to go to the nearest emergency room. In the initial denial of the claim, in April 2012, (of which the Veteran was notified in May 2012), the MAS physician commented that the Veteran had acute leg (thigh) pains, but that the need for portable ICU was not documented. In July 2012 (prior to the SOC), the claim was reviewed again, by another physician, who concluded that based on the ambulance note, apart from the pain scale of 10 from chronic DVT, there were no signs suggestive of an emergent status. The Board notes that in this case, it turned out that an actual emergency was not present, but the prudent layperson standard requires consideration of whether, under the circumstances present at the time the Veteran sought treatment at the private facility, a prudent layperson would reasonably expect that his condition was such that delay in seeking treatment would be hazardous to health or life. See 38 C.F.R. §§ 17.120, 17.1002(b); Swinney v. Shinseki, 23 Vet. App. at 264. It is not essential that the later medical work-up confirm the presence of a medical emergency. Swinney at 264. The Veteran contends that he was experiencing extreme pain in the groin and was in severe distress. He advised the EMT technician that his health care was provided by VA, but they declined to transport him to the VAMC in Gainesville, which was the closest VA medical facility. He said that he had an extensive history of chronic DVTs among other issues since 1990. He was unable to control the location of his treatment; therefore, he requested that VA assume responsibility for the charges. The records from the EMT service do not indicate that the Veteran requested to be transported to the VAMC in Gainesville. Moreover, the ambulance's decision to take him to the local TVRH is not, alone, evidence of an emergency. The ambulance records show that, although he was given an EKG, all findings on that and other vital signs and examination findings were essentially normal, and his pain resolved at some point during the less than 30 minute trip to the hospital. When he arrived at the hospital emergency department, he said that he wanted evaluation of DVT, although he was pain-free at the time. By the time of the physician's examination, he was ambulatory. The DVT was found to be unchanged since January 2012. The evidence reported on the day of the hospitalization does not indicate that a prudent person would have thought that a life or health threatening emergency was present, or that the Veteran in fact thought so. The evidence indicates that the Veteran called 911 due to severe pain in his legs, which he said he had experienced previously. Examination at that time was essentially normal, and his pain resolved en route to the hospital. Contrary to his current recollections, there is no indication that he requested that he be transported to the VA in Gainesville, approximately 50 miles away. He was taken to a local hospital and expressed his wish to be evaluated for DVT-that is, he chose to have a DVT evaluation at that time. Nothing in any of his statements indicates that he believed that the absence of immediate medical attention would place his health in serious jeopardy, cause serious impairment to bodily functions, or cause serious dysfunction of any bodily organ or part. The Veteran has stated that he has had DVT since 1990, and the VA medical records show his long term use of anticoagulants. Thus, under either 38 U.S.C.A. § 1725 or § 1728, the prudent layperson standard for a medical emergency has not been met. The Veteran's representative also referred to 38 C.F.R. § 17.52, which provides that when VA facilities are not capable of furnishing the care or services required, the VA may contract with non-VA facilities in order to furnish certain care, including hospital care or medical services for the treatment of medical emergencies which pose a serious threat to the life or health of a veteran receiving medical services in a Department facility until such time following the furnishing of care in the non-VA facility as the veteran can be safely transferred to a VA facility. 38 U.S.C.A § 1703(a)(3) (West 2002); 38 C.F.R. § 17.52 (2011). However, the admission of a veteran to a non-VA hospital at the expense of VA must be authorized in advance. 38 C.F.R. § 17.54 ; Malone v. Gober, 10 Vet. App. 539, 541 (1997). In the case of an emergency that existed at the time of admission, an authorization may be deemed a prior authorization if an application is made to VA within 72 hours after the hour of admission. 38 C.F.R. § 17.54 (2012). In this case, the evidence does not clearly show that the Veteran applied for authorization within 72 hours, but even if he did, the VA MAS denied his claim because an emergency was not present. If an emergency was not present at the time of admission, there is no basis for after-the-fact authorization. Because the Board finds that an emergency was not present, entitlement to under this provision is not warranted. The Board finds that the prudent layperson standard for a medical emergency was not present when the Veteran called 911 and was transported to and treated at TVRH on April 1, 2012. The evidence indicates that partial payment was made by Medicare, which would preclude entitlement under the Millennium Act. The Board has also considered entitlement under 38 U.S.C.A. § 1728, based on the assumption, for purposes of this decision, that he meets the requirement of having a total disability permanent in nature resulting from a service-connected disability. Under both of these laws, the prudent layperson standard for an emergency was not met. Additionally, prior authorization was not sought. See 38 C.F.R. §§ 17.52, 17.54. The Board is mindful that all reasonable doubt is to be resolved in the Veteran's favor. However, the preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Reimbursement or payment for unauthorized medical services rendered in connection with transportation to and treatment at TVRH on April 1, 2012 is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs