Citation Nr: 1312166 Decision Date: 04/12/13 Archive Date: 04/19/13 DOCKET NO. 10-45 189 ) DATE ) ) On appeal from the South Central Department of Veterans Affairs Health Care Network in Flowood, Mississippi THE ISSUE Entitlement to reimbursement or payment of medical expenses for treatment provided to the appellant at Memorial Hermann Woodlands Hospital from July 20, 2009, to August 10, 2009. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION According to the limited information contained in the file provided by the South Central Department of Veterans Affairs (VA) Health Care Network in Flowood, Mississippi, the appellant served on active duty from October 1968 to October 1971. This matter came to the Board of Veterans' Appeals (Board) on appeal from a decision of the South Central VA Health Care Network which denied a claim for reimbursement or payment of medical expenses for treatment the appellant received at Memorial Hermann Woodlands Hospital from July 20, 2009, to August 10, 2009. In April 2011, the appellant testified at a Board videoconference hearing before the undersigned Acting Veterans Law Judge. FINDINGS OF FACT 1. Payment or reimbursement of the cost of the private medical care provided to the appellant at Memorial Hermann Woodlands Hospital from July 20, 2009, to August 10, 2009, was authorized in advance by VA. 2. VA's authorization of the private medical care at issue was based on the conclusions of the appellant's treating physicians at the Audie Murphy VA Medical Center that the medical condition posed a serious threat to the appellants' health and that private medical care was the only feasible means of providing the necessary treatment because VA was not capable of performing the highly specialized surgical treatment the condition required. CONCLUSION OF LAW The criteria for payment or reimbursement of medical expenses for treatment provided to the appellant at Memorial Hermann Woodlands Hospital from July 20, 2009, to August 10, 2009, have been met. 38 U.S.C.A. §§ 1703, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 17.52, 17.53, 17.54 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA, VA is required to advise a claimant of the information and evidence not of record that is necessary to substantiate a claim. See 38 U.S.C.A. § 5103 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012). VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim, unless no reasonable possibility exists that such assistance would aid in substantiating that claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). In light of the favorable decision below, the Board finds that any deficiency in VA's VCAA notice or development actions is harmless error. Applicable Law 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 provide individual authorization or may contract with non-VA facilities in order to furnish such care. 38 U.S.C.A. § 1703(a) (West 2002); 38 C.F.R. §§ 17.52(a) (2012); Malone v. Gober, 10 Vet. App. 539, 541 (1997). Hospital care or medical services in public or private facilities will be authorized for the treatment of medical emergencies which pose a serious threat to the life or health of a Veteran receiving hospital care or medical services in a facility over which the Secretary has direct jurisdiction or government facility with which the Secretary contracts, and for which the facility is not staffed or equipped to perform, and transfer to a public or private hospital which has the necessary staff or equipment is the only feasible means of providing the necessary treatment, until such time following the furnishing of care in the non-VA facility as the Veteran can be safely transferred to a VA facility. 38 U.S.C.A. § 1703(a)(3) (West 2002); 38 C.F.R. § 17.52(a)(3) (2012). There is no requirement that the treatment be for a "service-connected disability" under this provision. The admission of any patient to a private or public hospital at VA expense will be authorized only 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 is 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 those instances where care in public or private hospitals at VA expense is authorized because a VA or other Federal facility was not feasibly available, 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. 38 C.F.R. § 17.53. The admission of a Veteran to a non-VA hospital at the expense of VA and under the provisions of 38 U.S.C.A § 1703 must be authorized in advance. 38 C.F.R. § 17.54 (2012); Malone, 10 Vet. App. 539. If the issue of prior authorization is resolved in the appellant's favor under 38 U.S.C.A. § 1703(a)(1), it is not necessary to consider the claim under the provisions of 38 U.S.C.A. §§ 1725 and 1728 (West 2002 & Supp. 2012), pertaining to reimbursement of unauthorized medical expenses. Background On July 20, 2009, the appellant was admitted to Memorial Hermann Woodlands Hospital for repair of a thoracoabdominal aortic aneurysm. On admission, it was noted that the appellant had been diagnosed as having a sizable aneurysm in October 2008 and had undergone extensive preoperative studies through the VA system. The surgical procedure was performed the following day by Dr. Safi J. Hazin. The appellant subsequent received treatment for several significant post-operative complications as well as physical and occupational therapy. He was discharged on August 10, 2009. The discharge diagnoses were status post resection and graft replacement of thoracoabdominal aortic aneurysm. According to the South Central VA Health Care Network, in September 2009, a claim for payment of the medical services provided from July 20, 2009, to August 10, 2009, was received in September 2009, although the claim itself is not in the record provided to the Board. In July 2010, a physician from the South Central VA Health Care Network reviewed the claim and noted that he "could find no evidence that anyone contacted the VA in attempt to have care rendered by VA." He indicated that in order for the private care provider to be paid by VA, the care should have been preauthorized. Because he could find no evidence that this had been done, and because VA had been available to provide the care, he recommended denial of the claim. The South Central VA Health Care Network denied the claim for payment of the medical services provided from July 20, 2009, to August 10, 2009, finding that reimbursement or payment was not warranted under the Veterans Millennium Health Care and Benefits Act because the care could have been provided by the emergency room at the Houston VA Medical Center. The date of the denial is unclear as there is conflicting information in the record provided by South Central VA Health Care Network. Nonetheless, the appellant appealed the RO's determination, arguing that VA had in fact authorized his care in advance. In support of his claim, he submitted clinical records from the Audie Murphy VA Medical Center (VAMC), part of the VA South Texas Healthcare System. In pertinent part, these records show that in February 2009, the appellant was seen at the Audie Murphy VAMC for a vascular surgery consultation. It was noted that the appellant had been discovered to have a very large thoracoabdominal aortic aneurysm. The VA vascular surgeon indicated that the procedure necessary to correct the condition was very high risk and performed infrequently. He concluded that the appellant would be best served by undergoing treatment with a private physician, Dr. Safi, who performed four to five of these procedures weekly. The VA vascular surgeon indicated that he would complete a request for a fee authorization and begin a preoperative workup on the appellant while the request was pending. A February 2009 VA consultation sheet noted that there was a diagnosis of tortuous aorta with fusiform aneurysms, most prominent in the lower thoracic aorta and infrarenal abdominal aorta. It was noted that the surgical procedure necessary to treat the appellant's condition was rarely performed at the VA facility and also carried a high mortality/morbidity. The consultation sheet noted that the VA vascular staff had concluded that the appellant required a private hospital where multiple procedures of this type were performed weekly on patients from all over the world. Specifically, it was noted that the appellant was to be treated by Dr. Safi Hazan. In a note dated the following month, it was noted that the consultation request had been approved. The record contains a copy of the March 2009 authorization form indicating that the appellant had been approved for referral to be seen and treated by Dr. Safi Hazan for a thoracoabdominal aneurysm. It was noted that the authorization was for an initial evaluation as well as the necessary testing and treatment, including surgery at the provider's choice of surgical centers, to include the anesthesiologist of choice. The period of validity was from March 18, 2009, to June 16, 2009. The authorization was subsequently extended to September 16, 2009. A March 2009 letter from the South Texas Veterans Health Care System advised the Veteran that he had been authorized a referral to be seen and treated by Dr. Safi Hazan. The letter expressly noted that the authorization was both for the initial evaluation as well as any necessary treatment, including surgical intervention. It was noted that "[s]hould surgical intervention be warranted, authorization for the surgical procedure at the provider's choice of surgical center, to include the anesthesiologist of choice is approved/authorized." The appellant was advised that the provider of choice should submit the bill and treatment summary to the South Texas Veterans Health Care System, Audie Murphy Veterans Hospital Division. At his April 2011 Board hearing, the appellant testified that his civilian physician had initially diagnosed him as having an aortic aneurysm and recommended that he seek further care from VA for his condition. The appellant testified that he began undergoing treatment at the Audie Murphy VAMC for his condition. The VA vascular surgeon there, however, advised him that he was not proficient in the type of surgery needed but that there was a private physician in Houston who did specialize in this type of surgery. The appellant testified that VA gave him authorization to undergo that surgery and said they would pay his bill. The appellant indicated that after the surgery, however, the bill was sent to VA but they refused to pay it. The appellant's representative indicated that it was his belief that the confusion over the prior authorization had resulted because the request for payment had been submitted to the South Central Department of VA Health Care Network, rather than the office which had originally authorized the claim, i.e. the South Texas VA Health Care System. Analysis In adjudicating a claim for payment or reimbursement of medical expenses, the Board must make an initial determination as to whether VA gave prior authorization for non-VA medical care received at a private facility. 38 U.S.C.A. § 1703(a); 38 C.F.R. § 17.54. This is a factual, not a medical, determination. Similes v. Brown, 6 Vet. App. 555, 557 (1994). Although what constitutes a prior authorization by VA is not expressly defined, the advice of a doctor or a nurse to go to a non-VA hospital is not the specific type of authorization contemplated by 38 C.F.R. § 17.54. Smith v. Derwinski, 2 Vet. App. 378, 378-79 (1992), Cantu v. Principi, 18 Vet. App. 92 (2004) (holding that the requirements under 38 C.F.R. § 17.54 for authorization were met when a VA physician arranged a Veteran's transfer and transportation from VA outpatient clinic to private facility). In this case, the Board finds that the record unambiguously reflects that VA expressly gave the appellant prior written authorization for the treatment he received at Memorial Hermann Woodlands Hospital from July 20, 2009, to August 10, 2009. As set forth above, the record contains both VA's authorization form, as well the letter provided to the appellant, both of which expressly authorized him to seek care, at VA's expense, from Dr. Safi Hazim for a thoracoabdominal aneurysm, including surgery at the provider's choice of surgical centers. The period of validity for the prior authorization was from March 18, 2009, to September 16, 2009. Given this evidence, the Board finds that there is no question that VA gave prior authorization for the treatment the appellant received. 38 U.S.C.A. § 1703(a); 38 C.F.R. § 17.54. The Board further finds that VA clinical records establish that the authorization for payment by VA of the private medical care was premised on the conclusions of the appellant's VA physicians that private medical services were necessary because the appellant's condition posed a serious threat to his life or health and that VA's medical staff was not capable of performing the highly specialized treatment he required. 38 U.S.C.A. § 1703(a)(3); 38 C.F.R. § 17.52(a)(3). Accordingly, the Board finds prior VA authorization and that payment or reimbursement of the medical expenses for treatment provided to the appellant at Memorial Hermann Woodlands Hospital from July 20, 2009, to August 10, 2009, is warranted. 38 U.S.C.A. §§ 1703, 5107; 38 C.F.R. §§ 17.52, 17.53, 17.54. In reaching this decision, the Board notes that although it does appear that the request for payment for the treatment provided to the appellant at Memorial Hermann Woodlands Hospital from July 20, 2009, to August 10, 2009, was incorrectly submitted to the South Central Department of VA Health Care Network, rather than the office which had originally authorized the claim, i.e. the South Texas VA Health Care System, this fact does not provide a basis upon which to deny the claim. ORDER Entitlement to reimbursement or payment of medical expenses for treatment provided to the appellant at Memorial Hermann Woodlands Hospital from July 20, 2009, to August 10, 2009, is granted, subject to the law and regulations governing the payment of monetary benefits. ______________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs