Citation Nr: 1308027 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 10-40 639 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Gainesville, Florida THE ISSUE Entitlement to payment or reimbursement for unauthorized medical expenses incurred at Berrien County Hospital on June 16, 2010. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran had extended active duty beginning in September 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an adverse determination entered in August 2010 by the Department of Veterans Affairs (VA) Medical Center (MC) in Gainesville, Florida, denying the Veteran's claim for payment or reimbursement for unauthorized medical services received on June 16, 2010, at Berrien County Hospital. In his substantive appeal, the Veteran requested a videoconference hearing before the Board and that proceeding was thereafter scheduled to occur in October 2012. Prior to its occurrence, however, the Veteran submitted a written statement withdrawing his request for a Board hearing and requesting that his claim be decided on the basis of the evidence of record. No other hearing request remains pending. FINDING OF FACT A medical emergency involving chest pain, shortness of breath, and anxiety and panic prompted the Veteran to seek emergency room medical care at Berrien County Hospital on June 16, 2010, which was not authorized by VA in advance; other eligibility criteria are not a bar to payment or reimbursement for the referenced non-VA emergency medical services. CONCLUSION OF LAW The criteria for payment for or reimbursement of unauthorized medical expenses incurred by the Veteran in receiving emergency medical services on June 16, 2010, at Berrien County Hospital have been met. 38 U.S.C.A. §§ 1725, 1728, 5107(West 2002 & Supp. 2012); 38 C.F.R. §§17.120, 17.1002 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 and its implementing regulations impose obligations on VA to provide claimants with notice and assistance. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). Here, the benefit sought on appeal is granted in full and, thus, the need to discuss the VA's compliance with its duties to notify and assist the Veteran is obviated. Initially, in adjudicating a claim for reimbursement of medical expenses, the Board must make a factual determination as to whether VA gave prior authorization for the non-VA medical care that the claimant received in a private facility. See 38 U.S.C.A. § 1703(a) (West 2002); see also 38 C.F.R. § 17.54 (2012). This is a factual not a medical determination, and, in this instance, it is clear that no prior VA authorization was sought or obtained for the emergency room care received by the Veteran on June 16, 2010, at Berrien County Hospital. See Similes v. Brown, 6 Vet. App. 555 (1994). Generally, in order to be entitled to payment or reimbursement of private medical expenses not previously authorized, a claimant must satisfy the criteria outlined by 38 U.S.C.A. § 1728, or in the alternative, 38 U.S.C.A. § 1725 and the accompanying regulations. To the extent allowable, payment or reimbursement of the expenses of care, not previously authorized, in a private or public (or Federal) hospital not operated by VA, or of any medical services not previously authorized including transportation may be paid on the basis of a claim timely filed, under the following circumstances: (a) Care or services not previously authorized were rendered to a veteran in need of such care or services: (1) For an adjudicated service-connected disability; (2) For nonservice-connected disabilities associated with and held to be aggravating an adjudicated service-connected disability; (3) For any disability of a veteran who has a total disability permanent in nature, resulting from a service-connected disability; (4) For any illness, injury or dental condition in the case of a veteran who is participating in a rehabilitation program under 38 U.S.C.A. Chapter 31 and who is medically determined to be in need of hospital care or medical services for reasons set forth in 38 C.F.R. § 17.48(j) ; and (b) Care and services not previously authorized were rendered in a medical emergency of such nature that delay would have been hazardous to life or health, and (c) VA or other Federal facilities 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. 38 C.F.R. § 17.120. The provisions of 38 C.F.R. § 17.120 are conjunctive, not disjunctive. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). Thus, each of these three criteria must be met in order to establish entitlement to reimbursement or payment of medical expenses under 38 U.S.C.A. § 1728 and 38 C.F.R. § 17.120. See Zimick v. West, 11 Vet. App. 45, 49 (1998). "Feasibly available" is not defined in the relevant statute or regulation. See 38 U.S.C.A. § 1728; 38 C.F.R. § 17.120. However, the provisions of 38 C.F.R. § 17.53 (2012), state that 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. 38 C.F.R. §§ 17.52, 17.53 (2012). As well, a VA facility would not be feasibly available if there were 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. 38 C.F.R. § 17.1002(c). 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. §§ 17.1000-100 8. Section 1725 was enacted as part of the Veterans Millennium Health Care and Benefits Act, Pub. L. No. 106-117, 113 Stat. 1553 (1999). To be eligible for reimbursement under this authority a claimant 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 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 a veteran could not have been safely transferred to a VA or other Federal facility; (e) At the time the emergency treatment was furnished, a 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 a 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) 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; (i) The veteran is not eligible for reimbursement under 38 U.S.C.A. § 1728 for the emergency treatment provided. 38 C.F.R. § 17.1002. Again, these criteria are conjunctive, not disjunctive; thus, all the criteria must be met. Melson, supra. An emergency is defined as "a sudden, generally unexpected occurrence or set of circumstances demanding immediate action." Hennessey v. Brown, 7 Vet. App. 143, 147 (1994). The Board notes that 38 C.F.R. § 17.1002, one of the regulations implementing the Veterans Millennium Health Care and Benefits Act, also defines emergency services. Under such provision, emergency services exist where 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, and indicates that this standard is met if there is 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 would 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. 38 C.F.R. § 17.1002(b). The regulations do not require that a veteran's treatment actually be proven emergent, from a purely medical standpoint, in order to qualify for payment or reimbursement under 38 U.S.C.A. § 1725. Rather, it need only be demonstrated that the evaluation and treatment were 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. A medical emergency lasts "only until the time the veteran becomes stabilized." 38 C.F.R. § 17.1002(d). 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." 38 C.F.R. § 17.1001(d). 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, this 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. 79067 (Dec. 21, 2011).) 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. These 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. Regulatory amendments were made in 2012. Prior to the 2012 regulatory amendments payment or reimbursement for emergency treatment could be made only for the period from the beginning of the initial evaluation treatment until such time as a person 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, 79071 (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 79071 (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 79072 (codified at 38 C.F.R. § 17.1005(d)). Lastly, further regulatory changes were made effective as of May 21, 2012, to 17.1001-1005. See 77 Fed. Reg. 23617 (Apr. 20, 2012). Those changes were made for conformity with statutory changes expanding veterans' eligibility for reimbursement, including retroactive payment or reimbursement for emergency treatment received on and after July 19, 2001, and payment limitations where an eligible veteran has contractual or legal recourse against a third party that would only partially extinguish a veteran's liability to the emergency treatment provider. A brief synopsis of the pertinent facts is as follows: The Veteran as of June 2010 was in receipt of a combined disability evaluation for VA compensation purposes of 70 percent for a mood disorder, intervertebral disc syndrome, spinal arthritis, sciatic nerve dysfunction, skin neoplasm, scars, and wrist and thumb disorders and was in receipt of a total disability rating for compensation based on individual unemployability. On June 16, 2010, the Veteran when driving experienced chest pain, shortness of breath, and much anxiety and panic, which persisted and did not subside, causing him to seek emergency room medical care at Berrien County Hospital and not to travel 100 miles to the nearest VA hospital. The Veteran credibly indicates that it was not in his best interests to stop and look for a phone in order to notify VA of this occurrence, but to go directly to the closest medical facility for immediate medical assistance. He sought and received medical assistance at Berrien County Hospital, the costs of which he seeks payment or reimbursement by this appeal. The Veteran's claim has been denied by the VAMC on the basis that no medical emergency was in existence at the time the Veteran sought emergency room care at Berrien County Hospital on June 16, 2010, noting that he had experienced the episodes in question during a three-day period prior to entry into the emergency room and had not sought medical assistance from attending VA medical personnel. The VAMC did indicate that it had been notified by hospital personnel on June 16, 2010, that the Veteran had presented himself for emergency medical care. Emergency room records compiled at Berrien County Hospital on June 16, 2010, indicate that when the Veteran was seen he related a three-day history of waking during the night with shortness of breath and diaphoresis. Chest pain with exertion was denied. In response to those prior episodes, the Veteran took a Xanax and each previous episode subsided within about thirty minutes. While he reported having had anxiety, depression, and panic attacks in the past, he indicated that his symptoms had never been as frequent or severe as they were at that point. Notice to VA of the Veteran's emergency room admission was provided. Evaluation and testing ruled out any major coronary or respiratory event; final diagnoses of intermittent shortness of breath with sweating and of anxiety and panic attacks were recorded and the Veteran was advised to follow-up with his primary care physician. Subsequent medical staff review of the claim for payment/reimbursement concluded that a medical emergency was not present and that VA medical facilities were available. The Veteran has credibly and persuasively stated that he believed that a medical emergency existed based on the frequency and severity of the episodes involving his service-connected panic attacks and that his emergency medical care on June 16, 2010, was prompted by such an episode occurring while driving that did not subside and that entailed shortness of breath and other symptoms. He likewise reports that the nearest VA facilities were located 100 miles away. While the Board notes that medical professionals have determined after the fact that a true medical emergency was not present on June 16, 2010, it is evident that the Veteran, as a prudent layperson, believed that a medical emergency was in existence based on the frequency and severity of his acute symptomatology, which despite treatment did not subside. The existence of a medical emergency is conceded and its presence is found to have resulted in the feasible unavailability of VA facilities. In the absence of evidence that any other entitlement criteria are not met, the record is found to support entitlement of the Veteran to payment for or reimbursement of unauthorized medical expenses he incurred while undergoing emergency room treatment at Berrien County Hospital on June 16, 2010. The benefit sought on appeal is granted. ORDER Payment of or reimbursement for unauthorized medical expenses for emergency room treatment at Berrien County Hospital on June 16, 2010, is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs