Citation Nr: 1308289 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 10-40 601A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Cleveland, Ohio THE ISSUE Entitlement to payment or reimbursement of medical care expenses incurred at St. Elizabeth Health Center on May 19, 2010. ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran served on active duty from May 1968 to November 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 administrative decision issued by the Department of Veterans Affairs Medical Center (VAMC) in Cleveland, Ohio, which denied the Veteran's claim for payment for medical services rendered at St. Elizabeth Health Center on May 19, 2010. In his substantive appeal dated in October 2010, the Veteran requested a hearing before a Veterans Law Judge at the local RO. He withdrew this hearing request in April 2011. 38 C.F.R. § 20.704 (2012). For the reasons detailed below, the appeal is REMANDED to the VAMC via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Veteran is seeking payment or reimbursement for medical expenses incurred at St. Elizabeth Health Center on May 19, 2010. The September 2010 statement of the case indicates that the Veteran has no adjudicated service-connected disabilities and has not alleged that the symptoms he received treatment for, namely abdominal pain, were related to a service-connected disability. The current record also establishes that the Veteran does not have coverage under a health-plan contract for payment or reimbursement of the treatment rendered on May 19, 2010. In claims involving payment or reimbursement by VA for medical expenses incurred as a result of treatment at a private facility, there are three different possible theories of entitlement: (1) the private medical services were authorized by VA; (2) the Veteran is entitled to payment or reimbursement for services not previously authorized that are related to or aggravated a service-connected disability; or (3) the Veteran is entitled to payment or reimbursement for services not previously authorized relating to a nonservice-connected disability. See 38 U.S.C.A. §§ 1703(a), 1725, and 1728(a) (West 2002 & Supp. 2012). Generally, the admission of a Veteran to a non-VA hospital at VA expense must be authorized in advance. See 38 C.F.R. § 17.54. Whether treatment was authorized is a factual, not a medical, determination. Similes v. Brown, 5 Vet. App. 555 (1994); see 38 U.S.C.A. § 1703(a); 38 C.F.R. § 17.54. 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. When a Veteran receives treatment at a non-VA facility without prior authorization, the law provides two related, but independent avenues for obtaining payment or reimbursement for medical expenses, 38 U.S.C.A. § 1725 and 38 U.S.C.A. § 1728. Pursuant to the Veterans Millennium Health Care and Benefits Act, payment or reimbursement of non-VA emergency medical services for nonservice-connected disorders is available if certain conditions are met. 38 U.S.C.A. § 1725; 38 C.F.R. §§ 17.1000-17.1008. Specifically, to be eligible for reimbursement under these provisions for a nonservice-connected disorder, the Veteran must satisfy nine separate 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 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 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 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); (e) 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; (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 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); (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; and (i) 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(a)-(i). The Board points out that the provisions in 38 C.F.R. § 17.1002 are conjunctive, not disjunctive; i.e. all of the enumerated criteria must be met. 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). In addition, the Board notes that the provisions of 38 U.S.C.A. § 1725 were changed via legislation which became effective October 10, 2008. See Veterans' Mental Health and Other Care Improvements Act of 2008, Pub. L. No. 110-387, § 402, 122 Stat. 4110 (2008). Specifically, the pertinent change is that in 38 U.S.C.A. § 1725, the word "shall" in the first sentence, replaced the word "may." This made the payment or reimbursement by VA of emergent treatment non-discretionary, if the Veteran satisfied the requirements for such payment. Additionally, this amendment added a provision, which essentially expands one of the criteria that defines 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. Id. Treatment records from St. Elizabeth Health Center reflect that the Veteran presented to the emergency room on May 19, 2010 with abdominal pain. He also reported that he had been diagnosed with an abdominal aortic aneurysm (AAA) in March 2010. In a June 2010 notice of disagreement (NOD), the Veteran indicated that he was concerned that his aneurysm would rupture and that he had contacted a VA triage nurse via telephone and was advised to go to the emergency room for treatment. The September 2010 statement of the case (SOC) indicates that the Veteran's claim for payment for medical services at St. Elizabeth Health Center on May 19, 2010 was denied in a July 2010 administrative decision; however, this denial is not contained in the claims file. In addition, it appears that the September 2010 SOC denied the Veteran's claim based on a finding that his condition was not emergent. As an initial matter, the VAMC should associate the July 2010 administrative decision with the Veteran's claims file. Additionally, the VAMC should clarify whether the Veteran was enrolled in the VA healthcare system and received medical services within the 24-month period prior to May 19, 2010. Moreover, the Veteran has reported in his June 2010 NOD that he had consulted with a VA triage nurse via telephone and was advised to seek treatment at the emergency room. In addition, the Veteran indicated in his October 2010 substantive appeal that the triage nurse had called him after the initial consultation to inquire as to whether his condition had improved and that the VA clinic services were not available at the time he sought emergency treatment. As any records of VA treatment in May 2010 are potentially pertinent to the appeal and within the control of VA, they should be obtained and associated with the claims file. The Veteran has consistently asserted that his treatment in May 2010 was emergent and that his treating VA physician had previously advised him that he would experience severe stomach should his aneurysm burst. Even if the treatment rendered on May 19, 2010 is determined to be emergent, it is not clear from the record whether a VA facility was feasibly available to provide such care. Based on the foregoing, if it is determined that the Veteran was enrolled in the VA healthcare system and received care in the 24-month period prior to May 19, 2010, the Board finds that a medical opinion, based on review of the record, would be helpful in determining whether a VA or other Federal facility/provider was feasibly available. The physician should also provide an opinion as to whether the May 2010 treatment was rendered in a medical emergency (i.e., the treatment was 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). See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. The VAMC should associate with the Veteran's claims file the July 2010 administrative decision which denied the instant claim, as identified in the September 2010 SOC. 2. The VAMC should take all necessary steps to associate with the claims file any records of VA treatment pertinent to the claim on appeal, to include any records dated in March 2010 and May 2010. All efforts to obtain these records should be documented in the claims file. If these records are unavailable, this should be documented in the claims file and the Veteran should be so informed. 3. The VAMC should clarify whether the Veteran was enrolled in the VA healthcare system and had received medical services within the 24-month period prior to May 19, 2010. 4. After all requested records have been obtained, and if it is determined that the Veteran was enrolled in the VA healthcare system and received medical services within the 24-month period prior to May 19, 2010, the VAMC should forward the claims file to an appropriate physician to obtain a medical opinion regarding the Veteran's treatment on May 19, 2010. The claims file, including a complete copy of this remand, must be made available for review of the Veteran's pertinent medical history. The examiner is asked to furnish an opinion with respect to the following questions: a) Was the treatment rendered on May 19, 2010 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? b) Was a VA or other Federal facility/provider feasibly available at the time of the Veteran's treatment on May 19, 2010 and would an attempt to seek treatment form such a facility prior to seeking treatment from St. Elizabeth Health Center have been reasonable? In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements regarding his symptoms. The rationale for any opinion offered should be provided. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matter 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 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). _________________________________________________ A. JAEGER 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).