Citation Nr: 1304928 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 10-38 920 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Cleveland, Ohio THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred from April 27, 2009 to April 29, 2009. ATTORNEY FOR THE BOARD S. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 decision of the Department of Veterans Affairs Medical Center in Cleveland, Ohio. The Veteran was hospitalized at Akron General Medical Center (AGMC) on April 21, 2009 and discharged on April 29, 2009. AGMC sought reimbursement for medical service provided throughout the Veteran's hospitalization. VA paid for the medical service provided from April 21, 2009 through April 26, 2009, but denied payment for medical services provided from April 27, 2009 through April 29, 2009. An appeal as to the issue of entitlement to payment or reimbursement of unauthorized medical expenses incurred from April 27, 2009 through April 29, 2009, has been perfected and, thus, the Board will address the merits of this claim herein. The issue of entitlement to payment or reimbursement of unauthorized medical expenses incurred from April 21, 2009 through April 26, 2009 has been granted in full and, thus, will not be considered herein. See generally AB v. Brown, 6 Vet. App. 35, 39 (1993) (holding that a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). The evidence of record demonstrated that AGMC submitted the claim of entitlement to payment or reimbursement of unauthorized medical expenses incurred from April 27, 2009 to April 29, 2009, and, thus, is recognized as the claimant in this matter pursuant to 38 C.F.R. § 17.1005(a) (2012). It appears from the record that AGMC enlisted the services of an attorney to represent it in this matter. However, VA has not received the proper documentation from AGMC appointing a representative. As such, the attorney will not be recognized as AGMC's representative. FINDINGS OF FACT 1. The Veteran was transported via paramedics to AGMC (a public hospital) after falling down a flight of stairs. The Veteran was then hospitalized from April 21, 2009 to April 29, 2009. 2. The Veteran was placed on a wait list for acceptance into a VA medical facility after AGMC personnel attempted to transfer the Veteran. The VA medical center did not inform AGMC that it was able to accept transfer of the Veteran prior to his discharge from AGMC on April 29, 2009. 3. The treatment the Veteran received was for injuries of such a nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to his life or health. 4. At the time of the fall, transporting the Veteran to a VA medical facility with an emergency room department was not feasible, and attempts to do so would not have been considered reasonable by a prudent layperson. 5. From April 27, 2009 to April 29, 2009, the Veteran was enrolled in the VA health care system and had received treatment within the preceding 24 months. 6. The Veteran is financially liable for the expenses incurred as a result of the April 27, 2009 to April 29, 2009 hospitalization. 7. The Veteran has no coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the April 27, 2009 to April 29, 2009 medical care. 8. The was no evidence the Veteran could or was seeking reimbursement from a third party for injuries occurring as a result of the April 21, 2009 fall. 9. The Veteran is not eligible for reimbursement under 38 U.S.C.A. § 1728. CONCLUSION OF LAW The criteria for reimbursement of unauthorized medical expenses from April 27, 2009 to April 29, 2009, have been met. 38 U.S.C.A. § 1725 (West 2002 & Supp. 2012); 38 C.F.R. §§ 17.1000-1008 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board grants entitlement to payment of or reimbursement for emergency medical expenses incurred as a result of the Veteran's April 27, 2009 to April 29, 2009 hospitalization, which constitutes a complete grant of the Veteran's claim. Therefore, no discussion of VA's duty to notify or assist is necessary. The Veterans Millennium Health Care and Benefits Act provides that 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 38 C.F.R. §§ 17.1000-1003. Section 1725 was enacted as part of the Veterans Millennium Health Care and Benefits Act, Public Law 106-177, and is referred to as the "Millennium Bill Act." The Veterans Millennium Health Care and Benefits Act was enacted on November 30, 1999, and took effect 180 days after the date of enactment, i.e., on May 29, 2000. See Pub. L. 106-117, Title I, Subtitle B, § 111, 113 Stat. 1556. A VA interim final rule implementing the new statute provides that its effective date is May 29, 2000, and that VA would make retroactive payments or reimbursements for qualifying emergency care furnished on or after that date. See 66 Fed. Reg. 36,467 (2001). In this case, the service rendered occurred after the effective date of the "Millennium Bill Act." Therefore, it is potentially applicable to the current appeal. In this regard, the Veterans Millennium Health Care and Benefits Act provides general authority for reimbursement for the reasonable value of emergency treatment furnished in a non-Department facility to those Veterans who are active Department health-care participants (i.e., enrolled in the annual patient enrollment system and recipients of Department hospital, nursing home, or domiciliary care under such system within the last 24-month period) and who are personally liable for such non-VA treatment and are not eligible for reimbursement under the provisions of 38 U.S.C.A. § 1728. See 38 U.S.C.A. § 1725; 38 C.F.R. §§ 17.1000-1008. Moreover, under current laws and regulations (see VETERANS' MENTAL HEALTH AND OTHER CARE IMPROVEMENTS ACT OF 2008, Pub. L. 110-387, October 10, 2008, 122 Stat 4110) the Veteran, in order to be eligible for payment or reimbursement for emergency services for non-service connected conditions in non-VA facilities, must show that his treatment satisfies 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; (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 layperson; (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; (g) If the condition for which the emergency treatment was furnished was caused by an accident or work-related injury, the Veteran has exhausted without success all claims and remedies reasonably available to him or her or provider against a third party for payment of such treatment; and (h) The Veteran is not eligible for reimbursement under 38 U.S.C.A. § 1728 for the emergency treatment provided. 38 U.S.C.A. § 1725, 38 C.F.R. § 17.1000-1008. Failure to satisfy any one of the above criteria precludes VA from paying or reimbursing unauthorized private medical expenses. [Note: In 2012, these criteria were amended. The following criterion was deleted: 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).] The evidence of record demonstrates that the Veteran was born in December 1947 and, thus, he was 61-years old in April 2009. On April 21, 2009, the Veteran was found lying in a supine position at the bottom of a flight of nine stairs. The Veteran reported that he experienced dizziness and/or lightheadedness and chest pain just before falling down the stairs. He also endorsed consuming alcohol prior to the fall. When emergency medical responders arrived, he complained of head and chest pain, with the chest pain registering a 10 on a 10-point pain scale. After a physical examination, the impression was possible head trauma and angina. He was placed in a cervical collar and on a backboard prior to being transported via paramedics to AGMC. An April 29, 2009 discharge summary demonstrated that the Veteran had a history of coronary artery disease requiring cardiac "stenting"; cardiovascular accident; chronic obstructive pulmonary disease; and alcoholism. It was noted that the Veteran arrived at AGMC as a "level 2 trauma alert." After a battery of tests were administered, it was ultimately determined that the Veteran experienced a small subarachnoid hemorrhage, forehead lacerations, and a right humerus fracture as a result of the April 21, 2009 fall. Further, on April 27, 2009, the Veteran underwent an open reduction and internal fixation of a left distal radius fracture that was also incurred as a result of the April 21, 2009 fall. He was discharged from AGMC on April 29, 2009. According to a September 19, 2009 letter from an AGMC registered nurse and Care Coordinator, she contacted VA on April 21, 2009 on the "transfer line" in order to provide VA with notice that the Veteran had been admitted to AGMC's medical intensive care unit with an intracranial hemorrhage, fractured right humerus, and facial lacerations. On April 22, 2009, she left a voice mail message on the "transfer line" with the Veteran's clinical information, which was also sent via facsimile to the designated number. On April 23, 2009, the AGMC registered nurse spoke with a VA representative at which time AGMC was informed that the Veteran was "still" on a waiting list. During this conversation, she informed the VA representative that the Veteran was developing delirium tremens. On April 28, 2009, the registered nurse left another voice mail message on the "transfer line" regarding the Veteran's admission into AGMC's psychiatric intensive care unit. The AGMC registered nurse then stated that VA informed her that even if the Veteran had been stable for transfer, the relevant VA medical facility did not have a room ("a bed") available to accept the transfer. The Board will separately address each of the above-listed criteria in order to ascertain if the medical treatment the Veteran received from April 27, 2009 to April 29, 2009, consequent to the fall qualifies for payment or reimbursement. Given that the Veteran was transported via paramedics to AGMC and was treated in various intensive care units, the Board concludes that the medical services provided to the Veteran were administered in a hospital emergency department or a similar facility held out as providing emergency care to the public. VA has already paid for the emergency medical services provided to the Veteran from April 21, 2009 through April 26, 2009. The salient issue with respect to criterion (a) is whether the medical services provided to the Veteran from April 27, 2009 to April 29, 2009 were emergency medical services. As discussed above, the Veteran sustained a left distal radius fracture, among several other injuries, as a result of the April 21, 2009 fall. On April 27, 2009, he underwent open reduction and internal fixation to repair the left distal fracture. Following this surgical procedure, the Veteran was extubated. In her September 2009 letter, the AGMC registered nurse stated that a 24-hour period of observation is required to monitor patients following extubation. Shortly after this window of observation, the Veteran was discharged from the hospital. Based on the above, and in consideration of the benefit of the doubt doctrine, the Board finds that the medical care provided to the Veteran from April 27, 2009 through April 29, 2009, was an extension of the emergency medical care provided from April 21, 2009 through April 26, 2009, and, thus, is sufficient to satisfy criterion (a). See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Even if the Board were to find that the medical services provided to the Veteran from April 27, 2009 to April 29, 2009 were not emergency medical services, there exists an alternative regulatory pathway for payment or reimbursement for said services. Generally, 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. 38 C.F.R. § 17.1005(b) (2012). An exception to this general rule reads as follows: Claims for payment or reimbursement of the costs of emergency treatment not previously authorized may be approved for continued, non-emergency treatment if (1) the non-VA facility notified VA at the time the veteran would be safely transferred to a VA facility 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, which means that the non-VA facility contacted either the VA Transfer Coordinator, Administrative Officer of the Day, or designated staff responsible for accepting transfer of patients at a local VA facility, and documented such contact in the Veteran's progress notes/physicians' notes, discharge summary, or other applicable medical record. 38 C.F.R. § 17.1005(c)(1), (2). The evidence of record included documentation of AGMC's attempts to transfer the Veteran to a VA medical facility as described in the AGMC registered nurse/Care Coordinator's September 2009 letter discussed above. Consequently, the evidence of record demonstrated that AGMC undertook the appropriate actions to transfer the Veteran to a VA medical facility, but was informed that the transfer of the Veteran could not be accepted, and that the Veteran was placed on a waiting list for transfer. There was no indication in the claims file that VA contacted AGMC at any point during the Veteran's hospitalization to inform AGMC that a VA medical facility was able to receive transfer of the Veteran. As such, payment or reimbursement would be warranted even if the April 27, 2009 through April 29, 2009 medical care provided to the Veteran was non-emergency treatment. Id. At the time of his fall, the Veteran was 61 years of age. Further, in addition to the injuries he sustained as a result of the fall, the Veteran experienced coronary artery disease that required stents and chronic obstructive pulmonary disease. Given the Veteran's age and medical history, a fall down a flight of nine stairs resulting in chest pain, head pain, and lacerations, are injuries of such a nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to his life or health. The fall took place in the Veteran's home in Akron, Ohio. The only VA medical facility located in Akron, Ohio is not equipped with an emergency room or department. See Smith (Brady) v. Derwinski, 1 Vet. App. 235, 238 (1991) (citing Fed. R. Evid. 201 (b) that courts may take judicial notice of facts not subject to reasonable dispute). The closest VA medical facility with an emergency room or department is located in Cleveland, Ohio, which is approximately 42 miles away. Id. Given the circumstances and nature of the Veteran's medical emergency, an attempt to transport the Veteran to the nearest VA medical center with an emergency room/department before seeking treatment in Akron, Ohio, would not have been considered reasonable by a prudent layperson. The Veteran has not previously submitted a claim of entitlement to any Veteran's benefits and, thus, service connection has not been granted for any of his current disabilities. The evidence of record demonstrated, however, that the Veteran was enrolled in the VA health care system throughout his April 21, 2009 to April 29, 2009 hospitalization at AGMC. Although the evidence of record did not include any VA treatment reports, an April 21, 2009 treatment record from AGMC demonstrated that the Veteran endorsed outpatient counseling at a VA clinic. Further, a separate AGMC treatment report dated on April 21, 2009 indicated that the Veteran had been previously transferred from AGMC to VA Medical Center, Wade Park Campus, located in Cleveland, Ohio. The Board accepts this evidence as an indication that the Veteran had received medical services under the authority of 38 U.S.C. Chapter 17 within the 24-month period preceding his April 21, 2009 through April 29, 2009 hospitalization at AGMC. The evidence of record included various documents, namely itemized health insurance claims forms, demonstrating that the Veteran is financially liable for the expenses incurred as a result of the medical services administered during his hospitalization from April 21, 2009 through April 29, 2009. The evidence of record did not demonstrate that the Veteran has coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the treatment beyond the VA health care system. As discussed above, the medical emergency experienced by the Veteran occurred in his home and, thus, it was not caused by a work-related injury. Further, there was no evidence demonstrating the existence of a third party from whom the Veteran could seek payment or reimbursement for the medical expenses arising as a result of the April 21, 2009 to April 29, 2009 hospitalization. With respect to the Veteran's eligibility for reimbursement pursuant to 38 U.S.C.A. § 1728, such eligibility is limited to treatment for disabilities for which service connection has been granted. As referenced above, the Veteran has not applied for and, thus, has not been granted service connection for any disability. Consequently, the Board finds that the Veteran is not eligible for reimbursement under 38 U.S.C.A. § 1728. On the basis of the foregoing, the record supports entitlement of the Veteran to payment for or reimbursement of medical expenses incurred as a result of his hospitalization from April 27, 2009 to April 29, 2009 at AGMC for treatment of nonservice-connected injuries. ORDER Entitlement to reimbursement of or payment for medical expenses incurred from April 27, 2009 to April 29, 2009 is granted, subject to those provisions governing the payment of monetary benefits. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs