Citation Nr: 1320440	
Decision Date: 06/25/13    Archive Date: 07/05/13

DOCKET NO.  07-20 630A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in North Little Rock, Arkansas


THE ISSUE

Payment or reimbursement of medical expenses incurred at St. Vincent Medical Center - North, in Sherwood, Arkansas, from March 6, 2007 to March 7, 2007.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Mary E. Rude, Associate Counsel

INTRODUCTION

The Veteran had active military service from June 1964 to June 1968. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs Medical Center (VAMC) in North Little Rock, Arkansas. 

In December 2008, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the North Little Rock Regional Office; a transcript of that hearing is of record. 

In July 2009 the Board remanded the claim for further development.  The matter has been returned to the Board for appellate review.

The Board's July 2009 remand instructions included an instruction to request that the North Little Rock VAMC provide details on what takes place when the facility is on "diversion" status and evidence indicating whether the cardiac ward had beds available from March 5 to 7, 2007.  This information has not yet been provided.  A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders.  Stegall v. West, 11 Vet. App. 268 (1998).  However, as the decision below grants the Veteran's claim in full, the Board finds this error to be harmless and there is no prejudice in proceeding with the issuance of a decision at this time.

The Board notes that payment or reimbursement for care received at St. Vincent Medical Center - North on March 5, 2007 was previously approved by the North Little Rock VAMC in June 2007; the dates for payment or reimbursement for care listed on the title page have therefore been changed to more accurately reflect the contested dates for payment or reimbursement period on appeal, that of March 6, 2007 to March 7, 2007. 

A review of Virtual VA reveals no records relevant to the claim on appeal.

FINDINGS OF FACT

1.  The Veteran was treated from March 5, 2007 to the morning of March 8, 2007 at St. Vincent Medical Center - North in Sherwood, Arkansas for a transient ischemic attack.

2.  Although the Veteran was stabilized by the evening of March 5, 2007, the North Little Rock VAMC was on diversion status on March 5, 6, and 7, 2007, and not feasibly available to accept transfer of the Veteran from St. Vincent Medical Center - North.

3.  St. Vincent Medical Center - North contacted a designated VA staff member responsible for accepting patient transfers at the North Little Rock VAMC, and the refusal to accept transfer was documented in the Veteran's hospital progress notes.  Records received from the VAMC reveal diversion status for the dates in question with apparent ER "overload" and notes that the Veteran was on a VA waiting list, apparently for a bed.

4.  The Veteran has no service-connected disabilities and is not eligible for payment or reimbursement for these expenses under 38 U.S.C.A. § 1728 (West 2002). 

5.  Veteran was enrolled in the VA Health Care system and there is no evidence that he had coverage under any other medical care contract for payment or reimbursement in whole or in part for the treatment received between from March 5, 2007 to March 7, 2007.


CONCLUSION OF LAW

The criteria for entitlement to payment or reimbursement of unauthorized medical expenses incurred from March 6, 2007 to March 7, 2007 at St. Vincent Medical Center - North have been met.  38 U.S.C.A. §§ 1725, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 17.53, 17.121, 17.1000-1008 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

The Board considered the regulations pertaining to VA's statutory duty to assist the Veteran with the development of facts pertinent to his claim.  Given the favorable action taken herein below, the Board finds that no further assistance in developing the facts pertinent to the Veteran's claim is required at this time.

Analysis

The Veteran is seeking entitlement to payment or reimbursement for expenses incurred by him at St. Vincent Medical Center - North, in Sherwood, Arkansas, from March 6, 2007 to March 7, 2007.  In June 2007 the VAMC in North Little Rock, Arkansas approved payment for March 5, 2007, the day the Veteran was admitted to St. Vincent Medical Center - North for a transient ischemic attack and denied payment for March 6 to 7, 2007, on the basis that the Veteran was stabilized by that time and capable of transfer to the VAMC.

Federal statutes and VA regulations offer several avenues by which a Veteran can claim payment or reimbursement for emergency medical expenses incurred at non-VA medical facilities.  The Veteran does not argue, and the record does not show, that prior authorization was received from the VAMC to seek emergency services at St. Vincent from March 5, 2007 to March 7, 2007.  Accordingly, in the absence of prior authorization or deemed prior authorization for medical services, there is no factual or legal basis for payment or reimbursement by VA under 38 U.S.C.A. § 1703 (West Supp. 2012) and 38 C.F.R. §§ 17.52, 17.53, and 17.54 (2012) for medical services at a non-VA facility from March 6, 2007 to March 7, 2007. 

Alternatively, reimbursement for unauthorized medical expenses may be made pursuant to 38 U.S.C.A. § 1728 (West Supp. 2012).  Generally, in order to be entitled to payment or reimbursement of medical expenses incurred at a non-VA facility, a claimant must satisfy three conditions.  There must be a showing that (a) the care and services rendered were either: (1) for an adjudicated service-connected disability, or (2) for a nonservice-connected disability associated with and held to be aggravating an adjudicated service-connected disability, or (3) for any disability of a veteran who has a total disability, permanent in nature, resulting from a service-connected disability, or (4) for any injury, illness, or dental condition in the case of a veteran who is participating in a rehabilitation program and who is medically determined to be in need of hospital care or medical services for reasons set forth in 38 C.F.R. § 17.47(i); (b) the services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health; and (c) no VA or other Federal facilities were 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.  See 38 U.S.C.A. § 1728; 38 C.F.R. § 17.120 (2012).  The Veteran, however, is not service connected for any disability.  Therefore, he is not entitled to payment or reimbursement by VA under 38 U.S.C.A. § 1728; 38 C.F.R. § 17.120.

In this case, reimbursement for unauthorized medical expenses may be made pursuant to 38 U.S.C.A. § 1725 and 38 C.F.R. §§ 17.1000-1008.  Section 1725 was enacted as part of the Veterans Millennium Health Care and Benefits Act, Public Law 106-177, the provisions of which became effective on May 29, 2000.  To be eligible for reimbursement under this authority, a veteran has to 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 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 transferred to a VA or other Federal facility; 

(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 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 U.S.C.A. § 1725.

The Board notes that regulations affecting payment or reimbursement for emergency treatment were revised in January 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.  A veteran is safe to be transferred once he/she has become stabilized.  38 C.F.R. § 17.1005(b) (2012). 

As of January 20, 2012, the revised regulations hold that 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.  38 C.F.R. § 17.1005(b).

If it is determined that a medical emergency no longer exists, 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 that 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 that 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.  38 C.F.R. § 17.1005(c).  If the 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.  38 C.F.R. §17.1005(d). 

Further regulatory changes were made effective as of May 21, 2012 to 38 C.F.R. § 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.  See 38 C.F.R. § 17.1004(f).  As the Veteran's emergency treatment occurred in 2007, the revised regulations may apply.

In this case, the medical evidence of record indicates that the Veteran received emergency treatment at St. Vincent Medical Center - North, in Sherwood, Arkansas beginning on March 5, 2007.  The Veteran has stated that he had been in his office in Sherwood when he began feeling chest pain, numbness in his body, and pain in his arm.  The Veteran got a ride to St. Vincent Medical Center - North, which was the closest emergency room to his location, where he was admitted immediately due to his signs of a cardiovascular event.  The Veteran informed his treating medical providers that he was a veteran and that they should contact the VAMC.  The Veteran stated that although he was not stable enough to be transferred at first, after he became stabilized, he was informed that the VAMC was in diversion status and they could not accept any additional patients.  He was informed that he had been put on a waiting list and that the VAMC would notify St. Vincent Medical Center - North when a bed became available, but they never did during the time before his discharge.

Treatment records from St. Vincent Medical Center - North confirm that the Veteran was admitted on March 5, 2007 due to complaints of chest pain and numbness in his arms.  The Veteran underwent imaging tests of the head, chest, and spine, and his vital signs were monitored.  A neurology consult found that the Veteran had likely had a small vessel stroke or other vascular event.  The Veteran's discharge summary found a final diagnosis of transient ischemic attack, mild essential hypertension, and spondylosis and mild to moderate spinal stenosis.  The Veteran was discharged on March 7, 2007, and he left the hospital in the morning of March 8, 2007.  A March 6, 2007 progress note entry written by a case manager shows that the hospital had tried to transfer the Veteran to the VAMC.  The note states that the Veteran was "concerned about insurance coverage" and that a call was placed to the VAMC, which stated that "they were on diversion yesterday off & on so [patient's] stay here should be covered [without] difficulty.  He is on a wait list."

The case manager from St. Vincent Medical Center - North submitted a letter in June 2007 explaining that the VAMC had been contacted as soon as the Veteran was admitted, and at that time a bed was available and transfer was planned for as soon as the Veteran was stable.  However, when VA was again contacted after the Veteran had stabilized, they informed the case manager that they were on "Divert" status and could not accept him.  The Veteran was then admitted to the Intensive Care Unit at St. Vincent Medical Center - North for further treatment.  The next day she contacted the VAMC Nurse Expeditor, who told her that the VAMC had been on diversion status multiple times during the preceding day and that no beds were currently available, but the Veteran would be placed on a waiting list.  The Veteran remained on that waiting list until his discharge from St. Vincent Medical Center - North, with no beds ever becoming available.

A record from the North Little Rock VAMC waiting list shows that the VAMC was called at 7:40 PM on March 5, 2007 to request a transfer for the Veteran.  The Veteran is listed as having a diagnosis of chest pain and being eligible for transfer, and "[Patient] would still like to be transferred" is written in the remarks.

The North Little Rock VAMC Diversion Calendar shows that the facility was on "Critical Care and ER Overload" status for most of March 5, 2007, on "Critical Care" status for most of March 6, 2007, and on "ER Overload" status for the evening of March 7, 2007.  There are also indications from the VAMC that he was on a waiting list, but there is no evidence that any transfer was ever undertaken.

The Board finds that the evidence of record supports a finding that the Veteran is eligible for payment or reimbursement of the expenses incurred at St. Vincent Medical Center - North from March 6, 2007 to March 7, 2007.

As noted above, the claim for payment or reimbursement for the initial evaluation and treatment rendered to the Veteran at St. Vincent Medical Center - North on March 5, 2007 has already been approved by the North Little Rock VAMC.  The only costs in dispute are those incurred on the following two days, March 6, 2007 and March 7, 2007, as the Veteran was found to be "stabilized" within 24 hours of his initial admittance.  The VA facility, however, was on "Divert" or "Diversion" status at the time; therefore, it can be said that a VA or other Federal facility/provider was not feasibly available.  Moreover, the Veteran and St. Vincent Medical Center - North properly contacted the VAMC and had the Veteran placed on a waiting list for a bed there.  At no time before the Veteran's discharge was he notified that such a bed had become available.  The VAMC's Diversion Calendar confirms that they were on a special diversion status for most of March 6, 2007, and while they may have no longer been on that status for much of March 7, 2007, there is no indication that the Veteran or St. Vincent Medical Center - North was ever notified of this.  The VAMC's wait list record shows only that the Veteran was waiting for a bed and wished to be transferred, but there is no evidence that a bed ever did become available or that the Veteran was notified if it had.

In the instant case, the requirements of 38 C.F.R. § 17.1005(c) for payment or reimbursement of the costs of unauthorized, continued non-emergency treatment following an emergency have all been met.  While the Board acknowledges that by the evening of March 5, 2007 the Veteran was stabilized and capable of transfer, the North Little Rock VAMC was on "Diversion" status and not willing to accept his transfer.  The case manager at St. Vincent Medical Center - North contacted the North Little Rock VAMC Nurse Expeditor, a designated staff person responsible for accepting transfer of patients and documented this contact in the Veteran's progress notes.  This contact is confirmed by the North Little Rock VAMC's waiting list records, which shows that they were contacted and had placed the Veteran on their waiting list.  There is no indication in the record that at any time the North Little Rock VAMC was willing to accept the Veteran's transfer but the Veteran himself refused to be transferred.  

Lastly, the evidence of record shows that the Veteran was enrolled in the VA Health Care system.  The Veteran stated in his October 2008 Board hearing that after he lost his private insurance, he signed up for the VA Health Care system and received his regular medical treatment through VA.  The Veteran's eligibility for the VA Health Care System is not in dispute, as the North Little Rock VAMC has already authorized reimbursement for the Veteran's first day of emergency treatment at St. Vincent Medical Center - North.  There is no evidence that the Veteran had coverage under any other medical care contract for payment or reimbursement in whole or in part for the treatment received between March 5, 2007 to March 7, 2007, and nothing to indicate that the Veteran is not personally liable for the cost of the emergency treatment received or that he had any contractual or legal recourse against a third party that would extinguish any of that liability.  See 38 C.F.R. § 1725(b).

Based on the foregoing, the Board resolves all reasonable doubt in finding that the Veteran met all of the criteria required for payment or reimbursement of medical expenses under 38 U.S.C.A. § 1725; 38 C.F.R. § 17.1000-17.1005.  As such, he is eligible for payment or reimbursement of the expenses incurred at St. Vincent Medical Center - North, in Sherwood, Arkansas, from March 6, 2007 to March 7, 2007.



ORDER

Payment or reimbursement of medical expenses incurred at St. Vincent Medical Center - North, in Sherwood, Arkansas, from March 6, 2007 to March 7, 2007 is granted, subject to the law and regulations governing the payment of monetary benefits.


____________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs