Citation Nr: 1306208	
Decision Date: 02/22/13    Archive Date: 02/27/13

DOCKET NO.  10-40 701A	)	DATE
	)
	)

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


THE ISSUE

Entitlement to payment or reimbursement of unauthorized medical expenses incurred during a hospitalization at Medical Center of Manchester on July 5, 2009.


ATTORNEY FOR THE BOARD

Paul S. Rubin, Counsel



INTRODUCTION

The Veteran had active service in the United States Air Force from September 1970 to August 1981.            

This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2009, September 2009, and October 2009 decisions by the Department of Veterans Affairs (VA) Medical Center (VAMC) in Murfreesboro, Tennessee.

A review of the Virtual VA paperless claims processing system reveals additional, pertinent VA treatment records.  These records are not present in the claims folder. However, because the appeal is granted in the decision below, there is no prejudice to the Veteran if the Board considers this additional evidence.  See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). 


FINDINGS OF FACT

1.  The totality of the evidence reveals that the Veteran's private care on July 5, 2009, was rendered in a "medical emergency" 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.  

2.  VA facilities were not feasibly available considering the urgent nature of the Veteran's medical emergency when he was hospitalized, as well as the significant distance involved to reach the nearest VAMC in Murfreesboro, Tennessee.  

3.  The Veteran did not remain at Medical Center of Manchester on July 5, 2009, beyond the point of stabilization.  He was only hospitalized for several hours.    


CONCLUSION OF LAW

The criteria are met for payment or reimbursement of unauthorized medical expenses incurred during a hospitalization at Medical Center of Manchester on July 5, 2009.  38 U.S.C.A. §§ 1703, 1725, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 17.53, 17.120(c), 17.130, 17.1002(c) (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Duties to Notify and Assist

Review of the medical expenses folder, more commonly known as the duplicate Consolidated Health Record (CHR) file or Medical Administration Service (MAS) folder, does not reveal compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq.  See also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  Nevertheless, the Board is granting the unauthorized medical expenses claim, which is a full grant of the benefit sought on appeal.  Accordingly, regardless of whether the notice and assistance requirements have been met in this case, no harm or prejudice to the appellant has resulted. See 38 C.F.R. § 20.1102; Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).  


Background Facts and Contentions

The Veteran was hospitalized on the evening of Sunday, July 5, 2009, at approximately 5:02 p.m. at a private facility, Medical Center of Manchester, after experiencing chest pain, atrial fibrillation, nausea, shortness of breath, pain between the shoulder blades, and elevated blood pressure.  He arrived by private vehicle, and it was noted that his condition was "urgent."  A chest x-ray identified an enlarged heart.  He was placed on a monitored bed, he had an electrocardiogram (EKG) and cardiac markers drawn, and he received intravenous medications to treat his symptoms.  After several hours, emergency medical records document that his condition had improved.  Medical personnel at the Medical Center of Manchester recommended further treatment and testing or transfer to the nearest VAMC.  The Veteran refused any further treatment, which was against medical advice, and he signed a waiver of liability provided by Medical Center of Manchester.  In so doing, he expressed concern that he would be unable to pay for further treatment.  

The private hospitalization on July 5, 2009, was for a nonservice-connected condition.  The Veteran is not service-connected for any disabilities by VA.  See July 5, 2009 private emergency records from Medical Center of Manchester; Virtual VA treatment records dated in July 2009; December 2009 VA physician letter of Dr. J.B., MD.  

Only several days before the July 5, 2009, private hospitalization, VA treatment records dated on July 2nd and 3rd documented earlier emergency hospitalization for high blood pressure and atrial fibrillation.  In addition, both VA and private treatment records indicated that the Veteran had previously undergone triple bypass heart surgery in April 2009.  Thus, the Veteran had a previous history of serious heart problems.  

VA has conceded that the care rendered at Medical Center of Manchester on the evening of July 5, 2009, was "emergent" in nature.  This fact is not in dispute.  However, VA has denied payment or reimbursement of unauthorized medical expenses for the July 5, 2009, hospitalization on the basis that VA facilities were "feasibly available" at the time of the unauthorized emergency treatment.  See August 2009, September 2009, and October 2009 administrative decisions of the VAMC in Murfreesboro, Tennessee; July 2010 Statement of the Case (SOC).   

The Veteran requests reimbursement of these unauthorized medical expenses on July 5, 2009.  The Veteran contends that the VAMC near Nashville, Tennessee, where he was previously treated for his cardiac problems, was not "feasibly available" at the time of his private emergency treatment due to distance.  In this regard, the Veteran contends that his blood pressure and heart symptoms were "urgent" and believed he required immediate emergency medical care.  He also was aware that he had undergone triple bypass heart surgery several months before.  The Veteran has stated that the Medical Center of Manchester was only three miles from his house, whereas the VAMC in Nashville, Tennessee, would have been over an hour's drive in bad weather that particular Sunday evening.  The nearby VA outpatient clinic in Tullahoma, Tennessee, was not open on a Sunday.  See October 2010 VA Form 9; December 2009 VA physician letter of Dr. J.B.




Governing Laws and Regulations 

Initially, under 38 U.S.C.A. § 1703, when VA facilities or other government facilities are not capable of furnishing economical hospital care or medical services because of geographic inaccessibility or are not capable of furnishing care or services required, VA may authorize or contract with non-VA facilities for care.  38 U.S.C.A. § 1703(a) (West 2002 & Supp. 2012); 38 C.F.R. § 17.52(a) (2012).  However, the Veteran has never contended, and the evidence does not demonstrate, that he received prior VA authorization for his private hospitalization.  Therefore, application of 38 U.S.C.A. § 1703(a) for reimbursement of "authorized" private hospitalization is unwarranted.  In short, the issue of prior authorization is not applicable here. 

Regardless, when the Veteran receives treatment at a non-VA facility without prior authorization, such as the case here, there are two statutes that allow for claimants to be paid or reimbursed for the medical expenses incurred for that treatment - specifically, 38 U.S.C.A. § 1728 and 38 U.S.C.A. § 1725.  Application of either statute is generally dependent on whether the Veteran has an adjudicated service-connected disability or not.   

Because the treatment in question was rendered for nonservice-connected disabilities (coronary artery disease and hypertension), the Veteran is not eligible for payment or reimbursement of "unauthorized" medical expenses incurred at a non-VA facility under 38 U.S.C.A. § 1728(a).  In fact, the Veteran is not service-connected for any disabilities.  There is also no evidence or allegation he is participating in a vocational rehabilitation program under 38 U.S.C. Chapter 31, which in certain instances might have qualified him under 38 U.S.C.A. § 1728.  Consequently, the only possible route to entitlement to unreimbursed medical expenses in this case stems from 38 U.S.C.A. § 1725, for treatment of a nonservice-connected disorder, pursuant to the Veterans Millennium Health Care and Benefits Act.  See also 38 C.F.R. §§ 17.1000-17.1008 (2012).  

Effective October 10, 2008, the provisions of 38 U.S.C.A. § 1725 and § 1728 were amended.  See Veterans' Mental Health and Other Care Improvements Act of 2008, Pub. L. No. 110-387, § 402, 122 Stat. 4110 (2008).  This bill made various changes to Veteran's mental health care and also addresses other health care related matters.  The changes are liberalizing in that they make reimbursement for medical expenses mandatory instead of discretionary, as well as expand the definition of "emergency treatment" beyond the point of stabilization.  In addition, the changes apply the more liberal prudent layperson standard for determining whether an actual medical emergency existed under either 38 U.S.C.A. § 1725 and § 1728.  

The amended law expands the meaning of "emergency treatment" under section 1725(f)(1) by stating:

(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.

See 38 U.S.C.A. § 1725 (West 2002 & Supp. 2012). 

Effective January 20, 2012, VA regulations implementing 38 U.S.C.A. § 1725 and § 1728 were amended to conform to the statutory changes.  See 76 Fed. Reg. 79,067 - 79,072 (December 21, 2011).  The amendments affected the following Title 38 regulations:  38 C.F.R. §§ 17.120, 17.121, 17.1001, 17.1002, 17.1005, 17.1006, and 17.1008.  

Pursuant to 38 C.F.R. § 17.1002(a)-(h) (2012), to be eligible for payment or reimbursement for emergency services for nonservice-connected conditions in non-VA facilities under the statute and the implementing regulations, the Veteran must 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 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). 

See 38 C.F.R. § 17.1002(a)-(h) (2012).  

All of the above elements must be satisfied for a claimant to qualify for payment or reimbursement.  Zimick v. West, 11 Vet. App. 45, 49 (1998); Malone v. Gober, 10 Vet. App. 539, 544 (1997).  That is, these criteria under 38 U.S.C.A. § 1725 and 38 C.F.R. § 17.1002(a)-(h) are conjunctive, not disjunctive; thus, all criteria must be met.  See Melson v. Derwinski, 1 Vet. App. 334 (June 1991) [use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met]; compare Johnson v. Brown, 7 Vet. App. 95 (1994) [only one disjunctive "or" requirement must be met in order for an increased rating to be assigned].

The Court also held that both medical and lay evidence may be considered in a prudent layperson evaluation for determining what constitutes a "medical emergency."  That is, VA should weigh "the totality of the circumstances" to determine whether a prudent layperson would consider the situation emergent.  Swinney v. Shinseki, 23 Vet. App. 257, 264-266 (2009).

With regard to the issue of feasible availability, the admission of any patient to a private or public hospital at VA expense will only be authorized if a VA medical center or other federal facility to which the patient would otherwise be eligible for admission is not feasibly available.  38 C.F.R. § 17.53 (2012).  A VA facility may be considered as not feasibly available when the urgency of the applicant's medical condition, the relative distance of the travel involved, or the nature of the treatment required makes it necessary or economically advisable to use public or private facilities.  Id.  When non-VA care is authorized in such circumstances, the authorization will be continued after admission only for the period of time required to stabilize or improve the patient's condition to the extent that further care is no longer required to satisfy the purpose for which it was initiated.  Id.

With regard to the issue of feasible availability, although pertaining to treatment of service-connected disabilities, 38 C.F.R. § 17.120(c) also provides further guidance.  Under 38 C.F.R. § 17.120(c), payment or reimbursement of the expenses of emergency treatment, not previously authorized, can be made when VA or other Federal facilities that VA has an agreement with to furnish health care services for Veterans were not feasibly available, and an attempt to use them beforehand or obtain prior VA authorization for the services required would not have been reasonable, sound, wise, or practicable, or treatment had been or would have been refused.

With regard to the issue of feasible availability, no reimbursement or payment of services not previously authorized will be made when such treatment was procured through private sources in preference to available Government facilities.  38 C.F.R. § 17.130 (2012).

In determining the claim at issue, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


Analysis

The Veteran has already met many of the substantive and administrative criteria for payment or reimbursement listed under 38 C.F.R. § 17.1002(a)-(h) (2012).  That is, it has been already determined by the VAMC that the claim for reimbursement was timely filed by the Veteran; the Veteran is financially liable to the private provider of treatment; the Veteran is without health insurance; 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; the Veteran is not eligible for reimbursement under 38 U.S.C. 1728 for the emergency treatment provided; the services in question were provided in a hospital emergency department; 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; and finally, stabilization is not at issue since the Veteran was only hospitalized for a few hours and left after he was considered stabilized.  See 38 C.F.R. §§ 17.1002(a)-(h), 17.1005 (2012).  

The only remaining issue in the present case is whether a VA or other Federal facility/provider was not feasibly available on Sunday July 5, 2009, and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson.  See 38 U.S.C.A. § 1725(f)(1)(A); 38 C.F.R. §§ 17.53, 17.1002(c).   Simply stated, the Veteran prevails if the Board concludes a VA facility was not feasibly available on the evening of July 5, 2009, under applicable VA law and regulations.

Upon review of the evidence, the Board finds that the requirements for payment or reimbursement for unauthorized emergency medical treatment on July 5, 2009, under the amended version of 38 U.S.C.A. § 1725 are met.  In this regard, the Veteran's July 5, 2009, hospitalization meets the standard for "emergency treatment" under the amended version of 38 U.S.C.A. § 1725(f)(1) due to the existence of a medical emergency and VA facilities not being feasibly available. 

In this respect, there is both favorable and unfavorable medical and lay evidence of record on the issue of whether at the time of the hospitalization in question a VA facility was not "feasibly available." 

Under VA regulation, 38 C.F.R. § 17.53, a VA facility may be considered as not feasibly available when the urgency of the applicant's medical condition, the relative distance of the travel involved, or the nature of the treatment required makes it necessary or economically advisable to use public or private facilities.  In the present case, the Veteran's condition on the evening of July 5, 2009 was noted as "urgent."  The urgency of his medical condition and the nature of the treatment required are factors weighed in the Veteran's favor.  He was experiencing chest pain, atrial fibrillation, nausea, shortness of breath, pain between the shoulder blades, and elevated blood pressure.  A chest x-ray noted an enlarged heart.  He was placed on a monitored bed, he had an EKG and cardiac markers drawn, and he received IV medications to treat his symptoms.  See July 5, 2009 private emergency records from Medical Center of Manchester; December 2009 VA physician letter of Dr. J.B.  Moreover, he had only been hospitalized for similar symptoms two days earlier and had recently undergone triple bypass heart surgery in April 2009.  In the context of these factual findings, it is apparent to the Board that the Veteran required "immediate" emergency medical care on the evening of July 5, 2009.  In fact, the Veteran's treating VA physician, Dr. J.B., opined in a December 2009 physician letter stated "this was a case in which a Veteran obtained necessary medical care for an emergency and this care was not available in his area (VA facility was not feasibly available per the langue in the denial letter)."

As to the relative distance of the travel involved, the Board, and its reviewing Courts, may take judicial notice of facts, as compared to evidence, which are not subject to interpretation.  See, e.g., Yeoman v. West, 140 F.3d 1443 (Fed. Cir. 1998); Dedicatoria v. Brown, 8 Vet. App. 441 (1995) (judicial notice of laws).   In this respect, the Board takes judicial notice that the nearest VA emergency room from the Veteran's home was the VAMC in Murfreesboro, Tennessee, which is approximately 41 miles away and a 47 minute drive.  The VAMC in Nashville, Tennessee, where the Veteran had received his previous cardiac care, was approximately 68 miles away, which is a 1 hour and 7 minute drive.  Conversely, the private Medical Center of Manchester where he was treated was approximately 2 miles away, which is only a 5 minute drive.  The Veteran has also credibly stated that, during his emergency, there was "very bad weather."  Given the Veteran's apparent level of distress, a prudent layperson would not endure a 47 minute drive in order to receive needed emergency treatment.  It would simply be unreasonable and unwise given the critical nature of his symptoms and his past medical history.  The length of the delay would have been too long.  The existence of a VA facility does not in and of itself mean that the VA facility was feasibly available.  Cotton v. Brown, 7 Vet. App 325, 327 (1995).  In addition, the nearby VA outpatient clinic closer to his home was not open on a Sunday; and regardless, VA clinics are generally not set up for emergency cardiac treatment.  

The Board has also considered August 2009 and July 2010 VA clinical and administrative reviews by VA personnel.  They advised that the claim should be denied because VA facilities were "feasibly available" and that the Veteran's treatment was procured through private sources in preference to available Government facilities.  See 38 C.F.R. § 17.130.  It was asserted in the July 2010 opinion that the Veteran "did not want to go to VA."  As explained above, the Board does not concur with this assessment, as it is not a question of mere desire, but rather it would not have been reasonable, sound, wise, or practical to drive a considerable distance to the nearest VAMC given the severity of his symptoms.  Moreover, these VA opinions provided very limited reasons or bases for their conclusions.  In this respect, the Board's decisions must be based on evidence in the record and "must be justified by a clear statement of reasons or bases and not by the equivalent of 'because I say so.'"  Hood v. Brown, 4 Vet. App. 301, 303 (1993).  

In addition, the Board acknowledges that private emergency records confirm the Veteran's condition stabilized after two or three hours after which he refused further treatment at both the private and VA facilities, against the wishes of medical personnel.  However, there is no evidence that he continued receiving private treatment beyond the point of stabilization.  He simply decided to go home as opposed to receiving further treatment from any type of facility.  

Based on the foregoing, the Board concludes that a VA facility was not "feasibly available" on the evening of July 5, 2009.  See 38 U.S.C.A. § 1725(f)(1)(A); 38 C.F.R. §§ 17.53, 17.1002(c).   Accordingly, the Board finds that payment or reimbursement of unauthorized medical expenses incurred during a hospitalization at Medical Center of Manchester on July 5, 2009, is warranted.  38 U.S.C.A. §§ 1725, 5107 (West 2002 & Supp. 2012).  


ORDER

Payment or reimbursement of unauthorized medical expenses incurred during a hospitalization at Medical Center of Manchester on July 5, 2009, is granted.  




____________________________________________
JESSICA J. WILLS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs