Citation Nr: 1304697	
Decision Date: 02/08/13    Archive Date: 02/19/13

DOCKET NO.  11-08 700A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center (VAMC) 
in Columbus, Ohio


THE ISSUE

Entitlement to payment or reimbursement for the cost of medical treatment provided at Grant Medical Center from December 7, 2009 to December 8, 2009.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Veteran



ATTORNEY FOR THE BOARD

G. Jackson, Counsel


INTRODUCTION

The Veteran had active service from October 1972 to September 1977.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 decision issued by the VAMC. In that decision, the VAMC granted payment or reimbursement for medical expenses incurred as a result of emergency treatment rendered at Grant Medical Center from December 6, 2009 to December 7, 2009, and denied payment for the expenses sustained thereafter (through December 8, 2008). In February 2012, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. 


FINDINGS OF FACT

1. The Veteran was treated at Grant Medical Center from December 6 to December 8, 2009, for a nonservice-connected disability.

2. The Veteran was found eligible for reimbursement for expenses from treatment rendered from December 6 to December 7, 2009, under the provisions of 38 C.F.R. § 17.1002.

3. The Veteran was medically stable for transfer to a VAMC on December 7, 2009, for continuation of treatment.



CONCLUSION OF LAW

The criteria for reimbursement for the cost of medical treatment provided at Grant Medical Center from December 7, 2009 to December 8, 2009 are not met. 38 U.S.C.A. §§ 1725, 1728, 5107 (West 2002); 38 C.F.R. §§ 17.52, 17.54, 17.1002, 17.1005 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). The claim in this case is governed by the provisions of Chapter 17 of Title 38 of the United States Code. The law pertaining to the duty to notify and to assist and its implementing regulations are not applicable to such claims. See Barger v. Principi, 16 Vet. App. 132, 138 (2002); Lueras v. Principi, 18 Vet. App. 435 (2004). 

Notwithstanding the fact that such law is not controlling in these matters, the Board has reviewed the case for purposes of ascertaining that the Veteran has had a fair opportunity to present arguments and evidence in support of his claim for payment or reimbursement of medical expenses. In this case, a letter sent to the Veteran in April 2011, as well as a April 2011 Statement of the Case, informed the Veteran of what evidence was needed to establish the benefits sought, of what VA would do or had done, and of what evidence the Veteran should provide. VA has also done everything reasonably possible to assist the Veteran with respect to his claims for benefits, such as obtaining private medical records, and providing the Veteran with the opportunity for a hearing. During the February 2012 Board hearing, the undersigned explained the issue on appeal and suggested the submission of evidence that may have been overlooked. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010).Therefore, the Board finds that it is not prejudicial to the Veteran for the Board to proceed to finally decide this appeal. 

Laws and Regulations

Congress has authorized VA to reimburse veterans for unauthorized emergency medical treatment in two separate statutes, 38 U.S.C.A. §§  1725 and 1728. Specifically, § 1725 authorizes reimbursement for emergency treatment for eligible veterans with non-connected disorders, and § 1728 authorizes reimbursement for emergency treatment for eligible veterans with service-connected disabilities. These statutory provisions are implemented at 38 C.F.R. §§ 17.1000-17.1008 for eligible veterans with nonservice-connected disorders, and at 38 C.F.R. §§ 17.120-17.121 for eligible veterans with service-connected disabilities.

The Veteran does not claim nor does the evidence show that his treatment was due to a service-connected disability, or for a nonservice-connected disability associated with and held to be aggravating an adjudicated service-connected disability, or that he is rated as permanently and totally disabled, or is participating in a rehabilitation program under 38 U.S.C. Ch. 31. Therefore, consideration of 38 U.S.C.A. § 1728 and 38 C.F.R. § 17.120 is unnecessary. 

On October 10, 2008, the Veterans' Mental Health and Other Care Improvement Act of 2008, Public Law 110-387, was enacted, and it made several amendments to VA authority to reimburse for the cost of non-VA emergency care. Section 402 of Public Law 110-387 amended the definition of "emergency treatment" in section 1725(f)(1), 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." Also, section 402(a)(1) amended section 1725(a)(1) by replacing the word "may" with the word "shall" in the first sentence. This made the payment or reimbursement by VA of treatment non-discretionary, if the Veteran satisfied the requirements for such payment. That is, under the version of § 1725 in effect prior to October 10, 2008, payment of such medical expenses was not mandatory even if all conditions for the payment were met. Under both versions, the conditions set out in the remainder of the statute must be met in order for VA to make payment or reimbursement.

Effective January 20, 2012, amendments to the regulations concerning reimbursement of emergency hospital and medical services provided to eligible Veterans were made to implement provisions from section 402 of the Veterans' Mental Health and Other Care Improvements Act of 2008 (the Act), Public Law No. 110-387, 122 Stat. 4110, which, as noted above, revised 38 U.S.C.A. §§ 1725 and 1728. See 76 Fed. Reg. 79,067, 79, 072 (December 21, 2011).

To be eligible for reimbursement, the Veteran has to satisfy all of the following 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 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 that 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 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 or in part, the veteran's liability to the provider. 

(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 C.F.R. § 17.1002 (2012).  

VA will not approve claims for payment or reimbursement of the costs of emergency treatment not previously authorized for any period beyond the date on which the medical emergency ended. For this purpose, VA considers that an emergency ends when the designated VA clinicians at the VA facility has determined that, based on sound medical judgment, a veteran who received emergency treatment: (1) Could have been transferred from the non-VA facility to a VA medical center (or other Federal facility that VA has an agreement with to furnish health care services for veterans) for continuation of treatment, or (2) Could have reported to a VA medical center (or other Federal facility that VA has an agreement with to furnish health care services for veterans) for continuation of treatment. 38 C.F.R. § 17.1005(b) (2012).

Claims for payment or reimbursement of the costs of emergency treatment not previously authorized may be approved for continued, non-emergent treatment, only if: (1) The non-VA facility notified VA at the time the veteran could be safely transferred to a VA facility (or other Federal facility that VA has an agreement with to furnish health care services for veterans) and the transfer of the veteran was not accepted, and (2) The non-VA facility made and documented reasonable attempts to request transfer of the veteran to VA (or request transfer of the veteran to VA (or to another Federal facility that VA has an agreement with to furnish health care services for veterans), which means the non-VA facility contracted either the VA Transfer Coordinator, Administrative Officer of the Day, or designated staff responsible for accepting transfer of patients at a local VA (or other Federal facility) and documented such contact in the veteran's progress/physicians' notes, discharge summary, or other applicable medical record. 38 C.F.R. § 17.1005(c) (2012)

The term stabilized means that no material deterioration of the emergency medical condition is likely, within reasonable medical probability, to occur if the veteran is discharged or transferred to a VA or other Federal facility that VA has an agreement with to furnish health care services for veterans. 38 C.F.R. § 17.1001(d) (2012). 


Analysis

In this case, there is no dispute that the Veteran was initially provided treatment for a medical emergency. The December 6, 2009 Emergency Department record reflects that the Veteran was transported to the emergency department after a 2-day history of nausea, vomiting and diarrhea. He reported that his diarrhea was coming out black stool and he felt like he was going to pass out. He also reported that he was vomiting very dark material. His initial blood pressure reading during transport was 72/30. He denied chest pain (but was maybe a little short of breath), weakness one side of his body or the other, fevers or chills and any alcohol abuse. The Veteran was given a Protonix bolus and drip. He was also given a blood transfusion because his blood pressure was equivocal and he was bleeding. He was to be admitted to the hospital for diagnosed acute gastrointestinal bleed. A scope was scheduled for the Veteran. Additionally, it is noted that the Veteran was enrolled with the VA health care system; and that he is liable to the private facility for the cost of that treatment. Further, the evidence indicates the Veteran has no other insurance, and no other third party which could be liable for the cost of his treatment. Accordingly, VA made payment for this medical emergency.

The Veteran's claim for payment or reimbursement was denied for the period of hospitalization after December 6, 2009, based on a finding that the Veteran was stable to be transferred on December 7, 2009. Thus, the essential assertion in this case is that the Veteran was not stable for transfer on December 7, 2009, and that an emergency existed continuously until his discharge from the hospital on December 8, 2009.

In his September 2010 Notice of Disagreement (NOD) the Veteran disagreed that he was stable on the December 7, 2009, and indicated that he didn't know anything about transferring to a VA facility. In his April 2011 Substantive Appeal, the Veteran reported that he was not told that his prognosis was stable until the afternoon of his discharge day of December 8, 2009. In his February 2012 hearing testimony, the Veteran essentially testified that he was not stable until December 8, 2009, his emergency lasted from December 6 to December 8, 2009, and therefore he was entitled to reimbursement/VA should pay for the cost of medical treatment provided at Grant Medical Center for the entire period (December 6, 2009 to December 8, 2009).

The Board acknowledges that the Veteran is competent and credible to assert his belief that he was not stable for transfer to a VA facility on December 7, 2009 (and therefore his emergency lasted from December 6 to December 8, 2009). See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the Board finds the objective medical evidence to be more probative than his lay assertions in determining that he was stable for transfer to a VA facility on December 7, 2009.  

In a December 7, 2009 daily progress note, the physician reported that the Veteran had no events over night. The Veteran was status post transfusion of 2 units of blood. His hemoglobin was still 9.6 (no increase and still monitored) but he had no bloody stools since admission and no hematemesis. The Nexium drip was continued and the Veteran was awaiting esophagogastroduodenoscopy (EGD). Objectively, he was in no acute distress, was alert and oriented. Cardiovascular, respiratory, musculoskeletal, neurological and skin examinations were unremarkable. His abdomen was soft, nontender and nondistended. He had normal bowel sounds and no palpable organomegaly or masses noted.

A December 7, 2009 addendum to the admission note indicates that the Veteran had a small, nonbleeding ulcer in the duodenal bulb. He was placed on the appropriate Nexium therapy and counseled on the need for absolute cessation of alcohol and cocaine. The physician noted that the Veteran's hemoglobin did not increment very well with transfusional support overnight. The Veteran was to be followed for stabilization and whether he needed further workup but to otherwise manage expectantly. 

In September 2010, after reviewing the medical records, a VA registered nurse determined that the Veteran was medically stable for transfer to the VAMC on December 7, 2009. See 38 C.F.R. § 17.1005(b) (2012). Moreover, the registered nurse's determination seems to be consistent with the objective evidence as noted above which tends to suggest that the Veteran's condition had stabilized. Despite being advised to do so at the February 2012 hearing, neither the Veteran nor his representative has identified, presented, or alluded to the existence of any medical evidence or opinion to contradict that provided by the registered nurse (which was based on a review of the medical records).

For the foregoing reasons, the Board finds that, for the period of hospitalization starting on December 7, 2009, the weight of evidence shows that the Veteran was stable to be transferred and is thus precluded from further payment/reimbursement of medical expenses incurred at Grant Medical Center pursuant to 38 U.S.C.A. § 1725. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 53-56 (1990).


ORDER

Entitlement to payment or reimbursement for the cost of medical treatment provided at Grant Medical Center from December 7, 2009 to December 8, 2009 is denied.



____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs