Citation Nr: 1303313 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 10-18 327A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Murfreesboro, Tennessee THE ISSUES 1. Entitlement to payment or reimbursement for medical services provided due to chest pain during the period from May 9, 2009, to May 10, 2009. 2. Entitlement to payment or reimbursement for medical services provided due to abdominal pain during the period from May 10, 2009, to May 13, 2009. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and D.H. ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from November 1947 to November 1948 and from August 1949 to April 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 decision by the Murfreesboro, Tennessee, Department of Veterans Affairs Medical Center (VAMC), which approved payment for care until stabilization on May 9, 2009. The Board remanded the case in February 2011 to schedule the Veteran for a hearing. In November 2011, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The Veteran waived agency of original jurisdiction (AOJ) review of evidence submitted subsequent to his November 2011 hearing. Although the VAMC adjudicated the issue for appellate review as entitlement to payment for inpatient treatment for an episode of care during the period from May 10, 2009, to May 13, 2009, the Board finds the appeal is more appropriately addressed as the separate issues listed on the title page of this decision. The issue of entitlement to payment or reimbursement for medical services provided due to abdominal pain during the period from May 10, 2009, to May 13, 2009, is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Medical Center. VA will notify the appellant if additional action is required on his part. FINDINGS OF FACT 1. The evidence shows that at the time of the medical services provided in May 2009 the Veteran was enrolled in a VA Health Care System with treatment having been provided within an applicable 24-month period. 2. The evidence shows that the treatment received for chest pain beginning upon arrival in the emergency department at Bowling Green Medical Center on May 8, 2009, until 8:00 pm on May 10, 2009, was for a condition of such a nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health, that VA or other appropriate federal facilities were not feasibly available, that he was financially liable for the care provided and was not covered under a health plan contract, and that he is not otherwise eligible for reimbursement under 38 U.S.C.A. § 1728. CONCLUSION OF LAW The criteria for payment or reimbursement for medical services provided for chest pain during the period from May 9, 2009, until 8:00 pm on May 10, 2009, have been met. 38 U.S.C.A. § 1725 (West 2002 & Supp. 2012); 38 C.F.R. § 17.1002 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has duties to notify and assist associated with a claim for VA reimbursement for emergency treatment. 38 U.S.C.A. § 1725 (West 2002 & Supp. 2012); 38 C.F.R. § 17.1004 (2012). In light of the determination in this case favorable to the Veteran no additional notice or assistance as to this specific matter is required. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). The pertinent facts in this case show the Veteran was enrolled in the VA Health Care System receiving his primary care at the Louisville, Kentucky, VA Medical Center including treatment in March 2009. VA records show he was not covered by Medicare and that service connection had been established for absence of the left kidney as a residual of a shell fragment wound (30 percent), shell fragment wound to Muscle Group II (30 percent), shell fragment wound to Muscle Group I (20 percent), scars to the iliac area and abdomen (0 percent), right little finger fracture (0 percent), and thrombophlebitis (0 percent). The Veteran's combined service-connected disability rating was 60 percent. The Court has held that VA only has the authority to make payments for reimbursements of unauthorized medical treatment when the expense was incurred for an emergency as defined by applicable law. See Fritz v. Nicholson, 20 Vet. App. 507, 509 (2006) ("Congress has authorized the Secretary to reimburse veterans for unauthorized emergency medical treatment under two statutory provisions, 38 U.S.C. § 1728 and 38 U.S.C. § 1725"). Statutory law provides reimbursement for emergency treatment under section 1725 as follows: (a) General authority.--(1) Subject to subsections (c) and (d), the Secretary shall reimburse a veteran described in subsection (b) for the reasonable value of emergency treatment furnished the veteran in a non-Department facility. (2) In any case in which reimbursement is authorized under subsection (a)(1), the Secretary, in the Secretary's discretion, may, in lieu of reimbursing the veteran, make payment of the reasonable value of the furnished emergency treatment directly-- (A) to a hospital or other health care provider that furnished the treatment; or (B) to the person or organization that paid for such treatment on behalf of the veteran. (b) Eligibility.--(1) A veteran referred to in subsection (a)(1) is an individual who is an active Department health-care participant who is personally liable for emergency treatment furnished the veteran in a non-Department facility. (2) A veteran is an active Department health-care participant if-- (A) the veteran is enrolled in the health care system established under section 1705(a) of this title; and (B) the veteran received care under this chapter within the 24-month period preceding the furnishing of such emergency treatment. (3) A veteran is personally liable for emergency treatment furnished the veteran in a non-Department facility if the veteran-- (A) is financially liable to the provider of emergency treatment for that treatment; (B) has no entitlement to care or services under a health-plan contract (determined, in the case of a health-plan contract as defined in subsection (f)(2)(B) or (f)(2)(C), without regard to any requirement or limitation relating to eligibility for care or services from any department or agency of the United States); (C) has no other contractual or legal recourse against a third party that would, in whole, extinguish such liability to the provider; and (D) is not eligible for reimbursement for medical care or services under section 1728 of this title. (c) Limitations on reimbursement.--(1) The Secretary, in accordance with regulations prescribed by the Secretary, shall-- (A) establish the maximum amount payable under subsection (a); (B) delineate the circumstances under which such payments may be made, to include such requirements on requesting reimbursement as the Secretary shall establish; and (C) provide that in no event may a payment under that subsection include any amount for which the veteran is not personally liable. (2) Subject to paragraph (1), the Secretary may provide reimbursement under this section only after the veteran or the provider of emergency treatment has exhausted without success all claims and remedies reasonably available to the veteran or provider against a third party for payment of such treatment. (3) Payment by the Secretary under this section on behalf of a veteran to a provider of emergency treatment shall, unless rejected and refunded by the provider within 30 days of receipt, extinguish any liability on the part of the veteran for that treatment. Neither the absence of a contract or agreement between the Secretary and the provider nor any provision of a contract, agreement, or assignment to the contrary shall operate to modify, limit, or negate the requirement in the preceding sentence. (4)(A) If the veteran has contractual or legal recourse against a third party that would only, in part, extinguish the veteran's liability to the provider of the emergency treatment, and payment for the treatment may be made both under subsection (a) and by the third party, the amount payable for such treatment under such subsection shall be the amount by which the costs for the emergency treatment exceed the amount payable or paid by the third party, except that the amount payable may not exceed the maximum amount payable established under paragraph (1)(A). (B) In any case in which a third party is financially responsible for part of the veteran's emergency treatment expenses, the Secretary shall be the secondary payer. (C) A payment in the amount payable under subparagraph (A) shall be considered payment in full and shall extinguish the veteran's liability to the provider. (D) The Secretary may not reimburse a veteran under this section for any copayment or similar payment that the veteran owes the third party or for which the veteran is responsible under a health-plan contract. (d) Independent right of recovery.--(1) In accordance with regulations prescribed by the Secretary, the United States shall have the independent right to recover any amount paid under this section when, and to the extent that, a third party subsequently makes a payment for the same emergency treatment. (2) Any amount paid by the United States to the veteran (or the veteran's personal representative, successor, dependents, or survivors) or to any other person or organization paying for such treatment shall constitute a lien in favor of the United States against any recovery the payee subsequently receives from a third party for the same treatment. (3) Any amount paid by the United States to the provider that furnished the veteran's emergency treatment shall constitute a lien against any subsequent amount the provider receives from a third party for the same emergency treatment for which the United States made payment. (4) The veteran (or the veteran's personal representative, successor, dependents, or survivors) shall ensure that the Secretary is promptly notified of any payment received from any third party for emergency treatment furnished to the veteran. The veteran (or the veteran's personal representative, successor, dependents, or survivors) shall immediately forward all documents relating to such payment, cooperate with the Secretary in the investigation of such payment, and assist the Secretary in enforcing the United States right to recover any payment made under subsection (c)(3). (e) Waiver.--The Secretary, in the Secretary's discretion, may waive recovery of a payment made to a veteran under this section that is otherwise required by subsection (d)(1) when the Secretary determines that such waiver would be in the best interest of the United States, as defined by regulations prescribed by the Secretary. (f) Definitions.--For purposes of this section: (1) The term "emergency treatment" means medical care or services furnished, in the judgment of the Secretary-- (A) when Department or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable; (B) when such care or services are rendered in a medical emergency of such nature that a prudent layperson reasonably expects that delay in seeking immediate medical attention would be hazardous to life or health; and (C) until-- (i) such time as the veteran can be transferred safely to a Department facility or other Federal facility and such facility is capable of accepting such transfer; or (ii) such time as a Department facility or other Federal facility accepts such transfer if-- (I) at the time the veteran could have been transferred safely to a Department facility or other Federal facility, no Department facility or other Federal facility agreed to accept such transfer; and (II) the non-Department facility in which such medical care or services was furnished made and documented reasonable attempts to transfer the veteran to a Department facility or other Federal facility. (2) The term "health-plan contract" includes any of the following: (A) An insurance policy or contract, medical or hospital service agreement, membership or subscription contract, or similar arrangement under which health services for individuals are provided or the expenses of such services are paid. (B) An insurance program described in section 1811 of the Social Security Act (42 U.S.C. 1395c) or established by section 1831 of that Act (42 U.S.C. 1395j). (C) A State plan for medical assistance approved under title XIX of such Act (42 U.S.C. 1396 et seq.). (D) A workers' compensation law or plan described in section 1729(a)(2)(A) of this title. [(E) Repealed. Pub.L. 111-137, § 1(a)(2), Feb. 1, 2010, 123 Stat. 3495] (3) The term "third party" means any of the following: (A) A Federal entity. (B) A State or political subdivision of a State. (C) An employer or an employer's insurance carrier. (D) An automobile accident reparations insurance carrier. (E) A person or entity obligated to provide, or to pay the expenses of, health services under a health-plan contract. 38 U.S.C.A. § 1725 (West 2002 & Supp. 2012). VA regulations provide substantive conditions for payment or reimbursement as follows: Payment or reimbursement under 38 U.S.C. 1725 for emergency treatment (including medical services, professional services, ambulance services, ancillary care and medication (including a short course of medication related to and necessary for the treatment of the emergency condition that is provided directly to the patient for use after the emergency condition is stabilized and the patient is discharged)) will be made only if all of the following conditions are met: (a) The emergency services were provided in a hospital emergency department or a similar facility held out as providing emergency care to the public; (b) The claim for payment or reimbursement for the initial evaluation and treatment is for a condition of such a 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 would be met if there were 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); (c) A VA or other Federal facility/provider that VA has an agreement with to furnish health care services for veterans was not feasibly available and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson (as an example, these conditions would be met by evidence establishing that a veteran was brought to a hospital in an ambulance and the ambulance personnel determined the nearest available appropriate level of care was at a non-VA medical center); (d) At the time the emergency treatment was furnished, the veteran was enrolled in the VA health care system and had received medical services under authority of 38 U.S.C. chapter 17 within the 24-month period preceding the furnishing of such emergency treatment; (e) The veteran is financially liable to the provider of emergency treatment for that treatment; (f) The veteran has no coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the emergency treatment (this condition cannot be met if the veteran has coverage under a health-plan contract but payment is barred because of a failure by the veteran or the provider to comply with the provisions of that health-plan contract, e.g., failure to submit a bill or medical records within specified time limits, or failure to exhaust appeals of the denial of payment); (g) If the condition for which the emergency treatment was furnished was caused by an accident or work-related injury, the claimant has exhausted without success all claims and remedies reasonably available to the veteran or provider against a third party for payment of such treatment; and the veteran has no contractual or legal recourse against a third party that could reasonably be pursued for the purpose of extinguishing, in whole, the veteran's liability to the provider; and (h) The veteran is not eligible for reimbursement under 38 U.S.C. 1728 for the emergency treatment provided (38 U.S.C. 1728 authorizes VA payment or reimbursement for emergency treatment to a limited group of veterans, primarily those who receive emergency treatment for a service-connected disability). 38 CFR § 17.1002 (2012). These regulations were revised effective January 20, 2012, with pertinent comments published at 79 Fed. Reg. 79067-02 (Dec. 21, 2011). Significantly, it was noted that on October 10, 2008, the Veterans' Mental Health and Other Care Improvements Act of 2008, Public Law 110-387, was enacted, and made several amendments to VA authority to reimburse for the cost of non-VA emergency care. Under Section 402 of Public Law 110-387 the definition of "emergency treatment" in section 1725(f)(1) was amended extending VA's payment authority until "such time as the veteran can be transferred safely to a [VA] facility or other Federal facility and such facility is capable of accepting such transfer," or until such transfer was accepted, so long as the non-VA facility "made and documented reasonable attempts to transfer the veteran to a [VA] facility or other Federal facility." This amendment extended the authority to pay for treatment post-stabilization. In this case, private treatment records show the Veteran presented to the emergency department at Bowling Green Medical Center on May 8, 2009, complaining of chest pain. Records show he was alert and oriented times three and reported chest pain estimated as one to two on a ten point scale. It was also noted he had a history of coronary artery disease and myocardial infarction and that an entry at 1735 (5:35 pm) noted complaints of chest pain were relieved with three doses of nitroglycerin. Subsequent reports dated on May 8, 2009, noted no distress. A May 9, 2009, hospital admission report noted he had experienced a central precordial chest pain with radiation to the left arm and some abdominal discomfort and the feeling of nausea and diaphoresis. The treatment plan included cardiology workup. Handwritten progress notes dated May 10, 2009, at 2000 (8:00 pm) show the Veteran was to be scheduled for a cholecystectomy on May 11, 2009. A general surgery consultation report dictated at 8:19 pm on May 10, 2009, noted the Veteran was admitted with complaints of chest pain and that "[e]ventually it was decided that this was probably non-cardiac." It was further noted that a left heart catheterization had been planned for May 11, 2009, but that a computerized tomography (CT) scan revealed evidence of a significantly distended gallbladder. The Veteran's chief complaint was identified as abdominal pain, right more than left and upper more than lower, with some nausea. The surgeon noted he was diaphoretic on May 9th, but not presently and that he was not having shortness of breath. He was unable to describe his pain any better than calling it as a six out of ten and that it was relieved, at least temporarily, with narcotic analgesics. It was noted the Veteran's treating physician, Dr. Lin, felt his gallbladder disease was a more pressing problem and had cancelled heart catheterization. The diagnoses included jaundices and abdominal pain likely acalculous cholecystitis. The surgeon noted the Veteran was "minimally symptomatic at this point, although certainly not symptom free" and that he was still having pain and requiring analgesics. A May 11, 2009, operative report noted postoperative diagnoses including acalculous cholecystitis with jaundice and umbilical hernia and intra-abdominal adhesions. Bowling Green Medical Center records dated September 17, 2009, identified as a late entry by a nurse, B.L., noted that on May 11, 2009, she had contacted Sally at VA in Louisville providing clinicals to her and had notified her that the Veteran was expected to go to the operating room later that day. It was further noted that Sally had said to call her back after surgery and that it would be billed to Nashville. B.L. stated that there was no discussion of transfer to VA at Louisville at any time during their conversation. She then noted that she had notified an insurance specialist at her hospital who got the Veteran entered into the Nashville VA system and that "per comment in BAR" there was a fee basis claim. A subsequent late entry from B.L. dated September 17, 2009, noted that she had called Valarie at VA Nashville at 1525 on May 12, 2009, and was told the Veteran was not in her book. She stated there was no mention of a bed at VA by either of them. VA records appear to indicate that vendor contacts were made on May 9, 2009, and May 12, 2009, related to an admission for chest pain. A Nashville VA Medical Center report dated May 12, 2009, and signed by a nurse, A.M.C., show notification was provided on May 11, 2009, for a May 9, 2009, admission at the Bowling Green Medical Center with a diagnosis of chest pain. It was further noted that the treatment was not for a service-connected disability, that it was emergent, and that VA facilities were not available. It was also noted that "[t]his will not be fee." In a June 2009 report A.C. found that at the time of the medical services provided on May 9, 2009, the Veteran was financially liable for the care provided and was not covered under a health plan contract, that he was enrolled in the VA Health Care System with treatment having been provided within an applicable 24-month period, that he is not otherwise eligible for reimbursement under 38 U.S.C.A. § 1728, that VA or other federal facilities were not feasibly available, and that the treatment received in the emergency department was for a condition of such a nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. It was noted the Veteran was stabilized and could have been discharged or transferred safely to a VA or other federal facility for continued treatment on May 9, 2009. It was further noted that the Veteran met all criteria under the Millenium Bill (codified at 38 U.S.C.A. § 1725) for emergency care until May 9, 2009. These findings were approved by a reviewing clinician on March 4, 2010, and by the fiscal service chief on October 29, 2009. In statements and testimony provided in support of the claim the Veteran and his daughter asserted that efforts had been made to receive approval for treatment at Bowling Green Medical Center and that at no time were they informed that VA would not pay for his continued treatment after being transferred from the emergency room. The Veteran's daughter testified that records showed the Veteran was not stabilized on May 9, 2009, after he was transferred from the emergency department and was an inpatient because he was vomiting. Based upon the evidence of record, the Board finds that at the time of the medical services provided in May 2009 the Veteran was enrolled in a VA Health Care System with treatment having been provided within an applicable 24-month period. The evidence also shows that the treatment received for chest pain beginning upon arrival in the emergency department at Bowling Green Medical Center on May 8, 2009, until 8:00 pm on May 10, 2009, was for a condition of such a nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health, that VA or other appropriate federal facilities were not feasibly available, that he was financially liable for the care provided and was not covered under a health plan contract, and that he is not otherwise eligible for reimbursement under 38 U.S.C.A. § 1728. The Board notes that VA correspondence in August 2009 indicates payment or reimbursement has been awarded for emergency treatment provided until May 9, 2009, but the Veterans' Mental Health and Other Care Improvements Act of 2008, Public Law 110-387, provides authorization for post-stabilization ancillary care for treatment of the Veteran's emergent chest pain to the point at which such care was no longer required and the treatment shifted to non-emergent abdominal pain. Therefore, entitlement to payment or reimbursement for medical services provided for chest pain during the period from May 9, 2009, until 8:00 pm on May 10, 2009, must be granted. ORDER Entitlement to payment or reimbursement for medical services provided for chest pain during the period from May 9, 2009, until 8:00 pm on May 10, 2009, is granted. REMAND A review of the record shows that private hospital records indicate that by 8:00 pm on May 10, 2009, the Veteran's emergency care providers found the cardiac-related treatment that had been the priority for his care since arrival no longer warranted additional treatment. The available evidence is clear that the subsequent treatment provided was related to the Veteran's abdominal pain and symptoms resulting in the May 11, 2009, postoperative diagnoses including acalculous cholecystitis with jaundice and umbilical hernia and intra-abdominal adhesions. In fact, records show the May 10, 2009, general surgery consultation report noted it had been determined that the Veteran's emergent symptoms were probably non-cardiac and at the time of dictation of the report at 8:19 pm the Veteran was minimally symptomatic. The Board notes, however, that Bowling Green Medical Center records dated September 17, 2009, indicate VA fee basis treatment was authorized for the May 11, 2009, surgery. It was noted that a nurse, B.L., had contacted Sally at VA in Louisville, had provided clinical information to her, and had notified her that the Veteran was expected to go to the operating room later that day (presumably notice of the planned cholecystectomy which was the known course of surgical treatment at that time). It was further noted that an insurance specialist at her hospital had gotten the Veteran entered into the Nashville VA system on a fee basis. A Nashville VA Medical Center report shows that notification had been provided on May 11, 2009, for a May 9, 2009, admission at the Bowling Green Medical Center with a diagnosis of chest pain. The report, signed May 12, 2009, specifically noted that "[t]his will not be fee." In light of the inconsistent evidence of record, the Board finds that additional development is required on this remaining issue prior to appellate review. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide all available records from the Bowling Green Medical Center related to conversations with VA concerning treatment for abdominal pain after 8:00 pm on May 19, 2009, or alternatively, to provide any necessary authorization for the release of these records to VA. After the Veteran has signed the appropriate releases, all sufficiently identified records should be obtained and associated with the claims folder. 2. Appropriate efforts must be taken to obtain all available VA records associated with any communication between employees at the Bowling Green Medical Center and VA employees in Louisville, Kentucky, and Nashville, Tennessee, on or about May 11, 2009. 3. After completion of the above and any additional development deemed necessary, the issue remaining on appeal should be reviewed with consideration of all evidence of record and the provisions of 38 U.S.C.A. §§ 1725, 1728, as applicable. If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and should be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs