Citation Nr: 1304696	
Decision Date: 02/08/13    Archive Date: 02/19/13

DOCKET NO.  10-36 336A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center 
in Murfreesboro, Tennessee


THE ISSUE

Entitlement to payment or reimbursement for unauthorized medical expenses incurred over the period of December 12, 2009, to December 22, 2009.


ATTORNEY FOR THE BOARD

J. W. Kim, Counsel










INTRODUCTION

The Veteran had active service from June 1969 to March 1973.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from two March 2010 administrative decisions of the Department of Veterans Affairs Medical Center (VAMC) in Murfreesboro, Tennessee, which denied claims for payment or reimbursement for medical services provided to the Veteran by a private hospital between December 11, 2009, and December 22, 2009.  

In an August 2010 administrative decision, the VAMC granted payment or reimbursement for medical services provided on December 11, 2009.  In a separate August 2010 administrative decision, the VAMC denied payment or reimbursement for medical services provided from December 12, 2009, to December 22, 2009.


FINDINGS OF FACT

1.  The Veteran was admitted for a medical emergency on December 11, 2009.  

2.  The Veteran was stabilized on December 14, 2009; however, another medical emergency arose on that date.  

3.  A VA or other Federal facility/provider was not feasibly available on December 14, 2009.

4.  The Veteran was stabilized on December 22, 2009.


CONCLUSION OF LAW

Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to payment or reimbursement for unauthorized medical expenses incurred over the period of December 12, 2009, to December 22, 2009, have been met.  38 U.S.C.A. §§ 1725, 5107(b) (West 2002 & Supp. 2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

Before addressing the merits of the claim on appeal, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012).

In light of the Board's favorable determination with respect to the claim, no further discussion of the duties to notify and assist is needed at this time.  

Analysis

In claims involving payment or reimbursement by VA for medical expenses incurred as a result of treatment at a private facility, it must first be determined whether the services for which payment is sought were authorized by VA.  38 U.S.C.A. § 1703(a) (West 2002 & Supp. 2012).  

In this case, the Veteran's treatment at the non-VA facility was not authorized in advance, and he does not so contend.

As treatment was not previously authorized, it now must be determined whether the Veteran is entitled to payment or reimbursement under either 38 U.S.C.A. § 1728 (West 2002 & Supp. 2012) or 38 U.S.C.A. § 1725 (West 2002 & Supp. 2012). 

Under 38 U.S.C.A. § 1728, unauthorized medical expenses may be reimbursed for emergency treatment rendered if the care and services rendered were for: (1) an adjudicated service-connected disability, or (2) a nonservice-connected disability associated with and held to be aggravating an adjudicated service-connected disability, or (3) any disability of a veteran who has a total disability, permanent in nature, resulting from a service-connected disability, or (4) any injury, illness, or dental condition in the case of a veteran who is participating in a rehabilitation program and who is medically determined to be in need of hospital care or medical services to make possible the veteran's entrance into a course of training, or hasten the return to a course of training which was interrupted because of such injury, illness, or dental condition. 

Payment or reimbursement for emergency services for nonservice-connected conditions in non-VA facilities may be authorized under 38 U.S.C.A. § 1725 and its implementing regulations under 38 C.F.R. §§ 17.1000-17.1002 (2012).  

Under 38 C.F.R. § 17.1002, to be eligible for reimbursement, the Veteran has to meet all of certain enumerated conditions: 

(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 lay person 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 lay person 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 was not feasibly available and an attempt to use them before hand would not have been considered reasonable by a prudent lay person (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 that the nearest available appropriate level of care was at a non-VA medical center); 

(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) 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; 

(f) The Veteran is financially liable to the provider of emergency treatment for that 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 (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 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); 

(h) The Veteran has no contractual or legal recourse against a third party that could reasonably be pursued for the purpose of extinguishing, in whole or in part, the Veteran's liability to the provider; and

(i) The Veteran is not eligible for reimbursement under 38 U.S.C. § 1728 for the emergency treatment provided.

Failure to meet any of the conditions listed precludes VA from paying unauthorized medical expenses incurred at a private facility.  38 U.S.C.A. § 1725(b); 38 C.F.R. § 17.1002. 

The provisions of 38 U.S.C.A. §§ 1725 and 1728 were amended, effective October 10, 2008.  See Veterans' Mental Health and Other Care Improvement Act of 2008, Pub. L. No. 110-387, 122 Stat. 4110 (2008).  The care rendered in this case was provided after October 10, 2008, thus the amended version of the statute will be applied to this claim.  

After review, the Board finds that the Veteran is not entitled to payment or reimbursement under 38 U.S.C.A. § 1728.  The services rendered were not for a service-connected disability, or one associated with a service-connected disability.  He does not have a total disability, permanent in nature, resulting from a service-connected disability.  He was not participating in a rehabilitation program.

With respect to 38 U.S.C.A. § 1725, the Board notes that the only conditions listed in 38 C.F.R. § 17.1002 that are in contention are those regarding the continuation of the medical emergency and the feasible availability of a VA or other Federal facility/provider.  38 C.F.R. § 17.1002(c), (d).

The Board notes that the Veteran has been paid or reimbursed for medical expenses incurred at the private hospital on December 11, 2009, and, thus, the Veteran was admitted for a medical emergency.  The question now becomes whether that medical emergency continued until his discharge on December 22nd.  

A December 11th private hospital record shows that the Veteran was admitted to the emergency department with complaints of increasing dyspnea and extremely high blood pressure.  He was treated with a nitroglycerin drip and aspirin, and his dyspnea significantly improved and his blood pressure improved somewhat.  The Veteran was diagnosed with acute dyspnea secondary to congestive heart failure versus fluid overload, renal failure, anemia and thrombocytopenia, and purpuric lower extremity lesions.  He was to be transferred to the cardiology department.  

A December 12th private hospital record shows that the Veteran's anemia worsened in the emergency department but was expected to stabilize with treatment for hypertension.

A December 14th private hospital record, entitled "Transfer Note," shows a principal diagnosis of hypertension emergency and secondary diagnoses of pulmonary edema, acute hypoxic respiratory failure, acute kidney injury, anemia, thrombocytopenia, and history of rectal cancer.  The record indicates that the Veteran's blood pressure and hematologic problems had been stabilized.

A December 14th VA medical treatment record, entitled "Non-VA Admission Notification," reflects that the Veteran was admitted that day with diagnoses of pulmonary edema and renal failure.  The record indicates that the care was for a nonservice-connected disability, that the care was emergent, and that a VA facility was not available.

A December 15th private hospital record shows that the Veteran still required work-up and treatment for hypertension and renal failure, and that the anemia was not an acute issue and could be treated by follow-up at the VAMC.

Private hospital records dating from December 15th to December 21st show that the Veteran was receiving continuous treatment, and those dating from December 20th begin to mention his discharge.  He was eventually discharged on December 22nd.

The Board first notes that the Veteran was admitted to a private hospital on December 11, 2009, and the main reason for the medical emergency was hypertension.  While the Veteran's hypertension improved on December 11th, the Veteran still required treatment on December 12th.  His hypertension was stabilized by December 14th, but still required treatment on December 15th.  Resolving reasonable doubt in the Veteran's favor, the Board finds that he was not stabilized with respect to his initial emergency until December 14, 2009.  See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The Board also observes that the Nashville VAMC is in close proximity to the private hospital, and the fact that the Veteran was not transferred to that VAMC on December 12th or 13th further supports the finding that he had not been stabilized.  

However, on December 14th, the physicians at the private hospital determined that the Veteran required continued in-patient care for, among other things, pulmonary edema and renal failure, and he was transferred to another department within the hospital.  After receiving notice of the Veteran's "admission" to the private hospital, a VA clinician acknowledged that the Veteran required emergency medical care for pulmonary edema and renal failure on December 14th.  Thus, the Board finds that another medical emergency arose on December 14th.  

The question now becomes whether a VA or other Federal facility/provider was available on December 14th to treat the Veteran's new medical emergency with respect to his pulmonary edema and renal failure.  The December 14th VA medical treatment record reflects that a VA facility was not available on that date.  Thus, the Board finds that a VA or other Federal facility/provider was not feasibly available on December 14th, and the Veteran properly remained at the private hospital.  Here, the Board observes that, even if the record showed that he stabilized on December 11th, given that no VA facility was available on December 14th, there is no basis to conclude that a VA facility was available on either December 12th or 13th.

The final issue is whether the medical emergency with respect to the Veteran's pulmonary edema and renal failure ended prior to December 22nd.  Private hospital records dating from December 15th to December 21st show continuous treatment.  Those dating from December 20th begin to mention his discharge, but he was not discharged until December 22nd.  Resolving reasonable doubt in the Veteran's favor, the Board additionally finds that he was not stabilized until December 22, 2009.  See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

In summary, the Veteran was admitted for a medical emergency on December 11, 2009, and although he was stabilized on December 14th, another medical emergency arose on that date, at which time a VA or other Federal facility/provider was not feasibly available.  The Board therefore finds that the Veteran was not stabilized until December 22nd, and that accordingly, this appeal should be granted.


ORDER

Entitlement to payment or reimbursement for unauthorized medical expenses incurred over the period of December 12, 2009, to December 22, 2009, is granted.




____________________________________________
Michael J. Skaltsounis
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs