Citation Nr: 1305740 Decision Date: 02/19/13 Archive Date: 02/27/13 DOCKET NO. 12-03 799 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Wichita, Kansas THE ISSUE Entitlement to payment or reimbursement for medical services provided at Western Plains Medical Center from July 4, 2011, through July 6, 2011. ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The appellant apparently had active service from September 1960 to September 1962, according to a statement of the case issued in October 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 decision of the Department of Veterans Affairs (VA) Medical Center in Wichita, Kansas, denying the appellant's claim for reimbursement of medical expenses. 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). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND A review of the record reveals that further development is needed prior to adjudicating the appellant's claim. The appellant is seeking reimbursement for medical expenses incurred for private medical care provided from July 4, 2011, through July 6, 2011, at the Western Plains Medical Center in Dodge City, Kansas. Generally, in cases where a claimant seeks reimbursement for unauthorized medical expenses, it must be determined (1) whether the services for which payment is sought were authorized by VA, and (2) whether the claimant is eligible for payment or reimbursement for services not previously authorized. See Hennessey v. Brown, 7 Vet. App. 143 (1994). In adjudicating a claim for reimbursement of medical expenses, VA must initially make a factual determination as to whether VA gave prior authorization for the non-VA medical care that the appellant received in a private facility. See 38 U.S.C.A. § 1703(a); 38 C.F.R. § 17.54; see also Malone v. Gober, 10 Vet. App. 539, 541 (1997). This is a factual, not a medical, determination. Similes v. Brown, 6 Vet. App. 555 (1994). The law provides that, in connection with its statutory obligation to provide medical services to appellant, VA may contract for private hospital care in certain limited circumstances, including cases where a medical emergency exists. Pursuant to 38 U.S.C.A. § 1703(a) (West 2002), "When [VA] facilities are not capable of furnishing . . . the care or services required, the Secretary, as authorized in [38 U.S.C.A. § 1710 ], may contract with non-Department facilities in order to furnish" certain care, including: "[h]ospital 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-Department facility as the veteran can be safely transferred to a Department facility." 38 U.S.C.A. § 1703(a)(3); 38 C.F.R. § 17.52. 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; see Malone v. Gober, 10 Vet. App. 539, 541 (1997); see also General Counsel Opinion, VAOPGCCONCL 1-95, at 9 (Mar. 31, 1995) ("Authorization in advance is essential to any determination as to whether the Department is or is not going to furnish the contract care."). 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. Here, the appellant alleges that the private treatment received from July 4, 2011 through July 6, 2011, was authorized by VA. He reports that upon presenting to the Western Plains Medical Center (M.C.) Emergency Room for chest pain, he informed medical personnel to contact VA. He reports that VA was contacted and informed Western Plains personnel that the VA Medical Center (VAMC) in Wichita had no cardiologist on duty, and therefore, the appellant should be stabilized and kept until the next day, at which time VA would follow up. The appellant reports that VA subsequently instructed that treatment was to be given in Dodge City (where Western Plains M.C. is located). Available medical records from Western Plains M.C. show that the appellant presented on July 4, 2011, with complaints of severe chest and epigastric pain. Emergency department records show that "VA called back for info on pt" at 19:55. A subsequent notation made pursuant to a 20:19 discussion of the appellant's case with a Dr. G. from the Wichita VA indicates "no cardio, admit locally." The appellant was then admitted to the intensive care unit with a diagnosis of rule out ACS (presumably acute coronary syndrome). No subsequent treatment records have been obtained. The foregoing evidence tends to support the appellant's claim that treatment provided on July 4, 2011, was authorized by VA. However, to the extent that subsequent treatment provided on July 5, 2011, and July 6, 2011, was authorized by VA, the record is unclear. In this regard, while emergency department records show at least two contacts with VA on July 4, 2011, no VA records have been associated with the claims file. Nor have any private records pertaining to the Western Plains M.C. admission, other than some emergency department records dated July 4, 2011. Accordingly, remand is necessary to obtain additional treatment records and VA records relating to the Veteran's July 2011 admission to Western Plains M.C., to include records pertaining to communications between VA and Western Plains M.C. regarding authorization of private treatment. Following receipt of additional records, the VAMC should determine whether the Veteran's treatment from July 4, 2011 through July 6, 2011, was authorized by VA, as suggested by the record. Next, the Board observes that the appellant is not service-connected for any disability. Thus, for any expenses incurred as a result of treatment deemed not authorized by VA, the claim for medical payment or reimbursement falls under 38 U.S.C.A. § 1725, which concerns emergency treatment for non-service-connected disabilities, rather than 38 U.S.C.A. § 1728, which concerns treatment for service-connected disabilities. Under 38 U.S.C.A. § 1725, a veteran may be eligible for reimbursement provided that he is 1) an active participant in VA health care, and 2) is personally liable for the emergency treatment furnished. A veteran is an active participant in VA health care if: 1) he or she is enrolled in the VA health care system; and 2) he or she received VA health care within the 24-month period preceding the unauthorized emergency treatment. A veteran is personally liable for the emergency treatment furnished if: 1) he or she is financially liable to the provider of the emergency treatment for that treatment; 2) he or she has no entitlement to care or services under a health-plan contract; 3) he or she has no other contractual or legal recourse against a third party that would, in whole, extinguish such liability to the provider; and 4) he or she is not eligible for reimbursement for medical care or services under 38 U.S.C.A. § 1728. A claim for payment or reimbursement under 38 U.S.C.A. § 1725 must be filed within 90 days after the latest of the following: July 19, 2001; the date the veteran was discharged from the facility that furnished emergency treatment; the date of death, but only if the death occurred during transportation to the facility for emergency treatment, or if the death occurred during the stay in the facility that included the provision of emergency treatment; or the date the veteran finally exhausted, without success, action to obtain payment or reimbursement for the treatment from a third party. 38 C.F.R. § 17.1004(d)(1)-(4). Payment or reimbursement under 38 U.S.C.A. § 1725 may be made only if the following eight conditions are met: (1) The emergency services were provided in a hospital emergency department or a similar facility held out as providing emergency care to the public; (2) The claim for payment or reimbursement 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. The standard of reasonable expectation would be met where an emergency medical condition manifests 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 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. (3) A VA or other Federal facility was not feasibly available and an attempt to use such a facility beforehand would not have been considered reasonable by a prudent person; such as when ambulance personnel determined that the nearest available appropriate level of care was at a non-VA medical center. (4) At the time the emergency treatment was furnished, the veteran was enrolled in the VA health care system and had received medical services within the 24-month period preceding the emergency treatment; (5) The veteran is financially liable for the treatment; (6) The veteran has no coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the emergency treatment; (7) 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 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; and (8) 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; 76 Fed. Reg. 79,067, 79,071 (Dec. 21, 2011) (codified at 38 C.F.R. § 17.1002(a)-(h)). During the pendency of this appeal, the provisions of 38 U.S.C.A. § 1725 were amended. First, effective from October 10, 2008, the Veterans' Mental Health and Other Care Improvement Act of 2008, Pub. L. No. 110-387, § 402(a), 122 Stat. 4123, made mandatory as opposed to discretionary the reimbursement of the reasonable value of emergency treatment of an eligible veteran furnished by a non-VA facility, if all of the pertinent criteria are otherwise satisfied. Additionally, the amendment added a provision which essentially expanded the meaning of "emergency treatment" to include treatment rendered (1) 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 (2) until such time as a Department facility or other Federal facility accepts such transfer if: (A) 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 (B) 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. (The regulatory amendments implementing these changes were made final on December 21, 2011, and are effective as of January 20, 2012. See Payment or Reimbursement for Emergency Treatment Furnished by Non-VA Providers in Non-VA Facilities to Certain Veterans with Service-Connected or Nonservice-Connected Disabilities, 76 Fed. Reg. 79 ,067 (Dec. 21, 2011).) Second, effective from February 1, 2010, pursuant to the Expansion of Veteran Eligibility for Reimbursement Act, Pub. L. No. 111-137, 123 Stat. 3495 (2010) (codified as amended at 38 U.S.C.A. § 1725 ), the provisions of § 1725(b)(3)(C) pertaining to contractual or legal recourse against a third party were modified so as to allow for reimbursement in situations where a portion of the cost of the care is covered. Those amendments are effective, and apply with respect to emergency treatment furnished on or after February 1, 2010, except where it is determined "under the circumstances applicable to the veteran, that it is appropriate to" apply the amendments to treatment received prior to the date of the Act's enactment. Pub. L. No. 111-137, § 1(c)(2), 123 Stat. 3495, 3496. As the Veteran's treatment here was furnished in July 2011, the amended provisions of § 1725 apply in the present case. Third, and finally, regulatory amendments were made in 2012. Prior to the 2012 regulatory amendments, payment or reimbursement for emergency treatment may be made only for the period from the beginning of the initial evaluation treatment until such time as the veteran could be safely discharged or transferred to a VA facility or other Federal facility. The 2012 amendments removed the following requirement: 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). Thus, beginning with the 2012 regulatory amendments, 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 clinician 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. 76 Fed. Reg. 79,067, 79,071 (Dec. 21, 2011) (codified at 38 C.F.R. § 17.1005(b)(1), (2)). Claims for payment or reimbursement of the costs of emergency treatment not previously authorized may be approved for continued, non-emergency 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 other Federal facility that VA has an agreement with to furnish health care services for veterans), which means 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 (or other Federal facility) and documented such contact in the veteran's progress notes, discharge summary, or other applicable medical record. 76 Fed. Reg. at 79,071 (codified at 38 C.F.R. § 17.1005(c)(1), (2)). If a stabilized veteran who requires continued non-emergency treatment refuses to be transferred to an available VA facility (or other Federal facility that VA has an agreement with to furnish health care services for veterans), VA will make payment or reimbursement only for the expenses related to the initial evaluation and the emergency treatment furnished to the veteran up to the point of refusal of transfer by the veteran. 76 Fed. Reg. at 79,072 (codified at 38 C.F.R. § 17.1005(d)). There appear to be outstanding treatment records pertaining to the appellant's July 4, 2011, admission to Western Plains M.C., and therefore it is unclear from the current record at what point the appellant's emergency ended or the appellant was stabilized during the course of his admission; whether he was subsequently transferred to VA; or whether efforts were made to transfer the appellant to VA beyond July 4, 2011. Accordingly, remand is necessary to obtain all outstanding private and VA treatment and administrative records stemming from the Veteran's admission to Western Plains M.C. on July 4, 2011. The Board also notes that the July 4, 2011, emergency department records show that the appellant was in receipt of Medicare Part A and Part B coverage at the time of his admission. A January 2012 VA patient inquiry shows that the Part A coverage was effective June 1, 2003, and Part B coverage was effective June 1, 2003. There is an indication in the record that some medical expenses incurred in conjunction with treatment rendered from July 4, 2011, to July 6, 2011, have been paid. For example, an August 2011 Health Insurance Claim Form from "SW Kansas Emer Phys, LLC" shows that $570.44 of a total $733.00 charges incurred on July 4, 2011, had been paid, leaving a remaining balance of $162.56. While the claim form lists the appellant as being insured by both VA and Medicare Part B, it does not indicate the party responsible for paying the $570.44. Nor do the available records otherwise show what portion, if any, of the expenses incurred in conjunction with the appellant's July 2011 admission have already been paid by Medicare. Accordingly, the VAMC in Wichita should contact the healthcare providers who provided inpatient care to the appellant from July 4, 2011, to July 6, 2011, and discover what expenses have been paid as a result of the Veteran's enrollment in Medicare Part A and Part B, and what medical expenses have not yet been paid. The results obtained by the VAMC should be included in the claims folder for review. Next, it is unclear whether the appellant was an active participant in VA health care at the time of his July 4, 2011, admission. A January 2012 VA patient inquiry shows the appellant to be enrolled in the VA system, but fails to show whether the appellant received VA treatment within the 24-month period prior to his admission on July 4, 2011. Accordingly, in the event that any treatment rendered from July 4, 2011, to July 6, 2011, is deemed not authorized, the Board finds that further clarification in that area is needed. Finally, the Board observes that the appellant's notice of disagreement, received by VA in October 2011, references several attachments which have not been associated with the appellant's claims file. Specifically, the referenced attachments included five pages of Western Plains medical records; three pages of a Medicare summary notice; and invoices from SW Kansas Emergency Physicians, Western Plains Medical Complex, Southwest Kansas Cardiology, and Medical Heights Medical Center. It is unclear whether those attachments were received by VA but not associated with the claims file, or whether they were not included with the correspondence when sent by the appellant. Nevertheless, efforts should be made to locate and associate those attachments as they are relevant to the appellant's claim. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Issue a letter to the appellant specifically requesting that the appellant provide sufficient information, and if necessary, authorization to enable VA to obtain all treatment records from Western Plains Medical Center dated July 4, 2011 through July 6, 2011, to include any records pertaining the initial emergency room forms and admitting forms, transfer to the intensive care unit, and any administrative records regarding contact between Western Plains Medical Center and the VAMC in Wichita, Kansas during the appellant's treatment and hospitalization to discuss authorization of treatment and possible transfer to its facility. All pertinent VA records should also be obtained, to include any records relating to authorization of treatment rendered at Western Plains Medical Center from July 4, 2011 to July 6, 2011. Western Plains emergency department records note at least two contacts with VA on July 4, 2011, suggesting authorization of treatment. Any requests for information should be clearly documented in the record, including any responses. If such information cannot be obtained, a statement to that effect should be placed in the file. 2. Associate with the record, or request from the appellant if appropriate, the attachments referenced on his notice of disagreement received in October 2011. 3. The VAMC should contact the healthcare providers who provided inpatient care to the appellant from July 4, 2011 to July 6, 2011, and discover what expenses have been paid as a result of the appellant's enrollment in Medicare Part A and Part B, and what medical expenses have not been paid as of this date (February 14, 2013). The results obtained by the VAMC should be included in the claims folder for review. 4. After any records have been associated with the record, refer the claims file to a VA physician to obtain a medical opinion regarding whether, at any point during his stay, the Veteran's condition was stabilized to the point where he could safely transport himself (i.e., without ambulance assistance) approximately 169 miles from the Western Plains Medical Center in Dodge City, Kansas, to the VAMC in Wichita, Kansas. The physician should provide a rationale for his/her conclusion. The opinion must be associated with the record. 5. After conducting any additional development deemed necessary, review the evidence and determine whether the Veteran's claim may be granted. If not, he should be furnished an appropriate SSOC and be provided an opportunity to respond. 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). _________________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).