Citation Nr: 1320772	
Decision Date: 06/27/13    Archive Date: 07/05/13

DOCKET NO.  07-17 059A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Nebraska-Western Iowa Health Care System


THE ISSUE

Entitlement to payment or reimbursement of unauthorized medical services provided at the Nebraska Medical Center on June 6, 2005.



REPRESENTATION

Appellant represented by:	The American Legion



ATTORNEY FOR THE BOARD

J. H. Nilon, Counsel




INTRODUCTION

The Veteran served on active duty from December 1972 to December 1976.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2005 decision by the Department of Veterans Affairs (VA) Nebraska-Western Iowa Health Care System that denied payment or reimbursement for unauthorized services provided by the emergency room of Nebraska Medical Center on June 6, 2005.

In his substantive appeal, received in June 2007, the Veteran requested a hearing before a Member of the Board.  A hearing at the RO ("Travel Board" hearing) before an Acting Member of the Board was duly scheduled in March 2010, but the Veteran failed to appear.  The Veteran did not show good cause for failing to appear and has not requested that the hearing be rescheduled.  His request for a hearing before the Board is accordingly deemed to be withdrawn.  See 38 C.F.R. § 20.704(d) (2012).


FINDINGS OF FACT

1.  The Veteran received medical treatment at the emergency room of the Nebraska Medical Center on June 6, 2005.

2.  VA medical treatment facilities were reasonably available to the Veteran at the time of his treatment by the Nebraska Medical Center.


CONCLUSION OF LAW

The criteria for payment of or reimbursement for medical expenses arising from treatment provided to the Veteran by Nebraska Medical Center on June 6, 2005, are not met.  38 U.S.C.A. §§ 1725, 1728 (West 2002 & Supp. 2012); 38 C.F.R. §§ 17.120, 17.121, 17.1002 (2012).   
REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), established an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of the evidence he or she should submit and of the assistance VA will provide to obtain evidence on the claimant's behalf.  In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence.  

There is no indication in the VCAA that Congress intended the Act to revise the unique and specific third-party claim provisions of Chapter 17, Title 38 of the United States Code.  See 38 C.F.R. § 17.123-17.132; see also Barger v. Principi, 16 Vet. App. 132, 138 (2002).  

The claim on appeal was filed by Nebraska Medical Center as claimant; the appeal has been pursued by the Veteran.  In the Statement of the Case dated in May 2007 the Veteran was provided with the full text of the applicable statutes and regulations as well as the reasons the claim was denied.  The Agency of Original Jurisdiction subsequently readjudicated the claim in October 2011.

The Veteran was scheduled for a hearing before the Board but he failed to appear.    

The Veteran has been afforded adequate process under 38 U.S.C.A. § 7105 in regard to his appeal, and all relevant medical records - in this case, the records from Nebraska Medical Center documenting the medical treatment for the period under contention - have been obtained.  The Board previously remanded the file to determine if there are any existing VA emergency room treatment records that relate to the Veteran's presentation there on the date in question, but careful review of the active and retired records disclosed no medical documentation of the Veteran's visit to that facility.

The Veteran has not identified any existing evidence that should be procured before the issue on appeal is adjudicated, and the Board is unaware of any such outstanding evidence.  

For the reasons set forth above, no further notification or assistance is necessary, and the Veteran is not prejudiced by adjudication of his claim at this time.  

Legal Principles

VA may pay or reimburse veterans for payment of medical expenses incurred in non-VA facilities where: (1) such care or services were rendered in a medical emergency of such a nature that delay would have been hazardous to life or health; (2) such care or services were rendered to a veteran in need thereof (A) for an adjudicated service-connected disability, (B) for a nonservice-connected disability associated with and held to be aggravating a service-connected disability, (C) for any disability of a veteran who has a total disability permanent in nature from a service-connected disability; or (D) for any illness in the case of a veteran who is a participant in a vocational rehabilitation program that necessitates care or treatment to make possible such veteran's entrance into a course of training, prevent interruption of such course of training, or hasten completion of such course of training; and, (3) VA or other Federal facilities were not reasonably available and an attempt to use them beforehand would not have been reasonable, sound, wise or practicable.  38 U.S.C.A. § 1728(a).

Per the implementing regulation to 38 U.S.C.A. § 1728, "in a medical emergency" is defined as emergency treatment not previously  authorized including medical services, professional services, ambulance services, ancillary care and medication (including a short course of medication related to and necessary for the treatment of the emergency condition that is provided directly to the patient for use after the emergency condition is stabilized and the patient is discharged) was rendered in a medical emergency of such 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 is met by an emergency medical situation manifesting itself by acute symptoms of such severity (including severe pain) that a prudent layperson 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. § 17.120(b).

The Court has held that all three of these requirements must be met before payment is authorized.  Zimick v. West, 11 Vet. App. 45, 49 (1998).

Emergency care not covered under the provisions of 38 U.S.C.A. § 1728(a) as described above may qualify for reimbursement under the provisions of 38 U.S.C.A. § 1725 and 38 C.F.R. §§ 17.1000-1003.  Section 1725 was enacted as part of the Veterans Millennium Health Care and Benefits Act, Public Law 106-177, and will be referred to as the "Millennium Bill Act" in this discussion.

To qualify for reimbursement under the Millennium Bill Act as articulated in 38 C.F.R. § 17.1002, payment or reimbursement for emergency treatment (including medical services, professional services, ambulance services, ancillary care and medication (including a short course of medication related to and necessary for the treatment of the emergency condition that is provided directly to the patient for  use after the emergency condition is stabilized and the patient is discharged) will be made only if all of the following conditions are met:

(a) The emergency services were provided in a hospital emergency department or 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 that 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 had no coverage under a healthcare 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 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 of failure to exhaust appeals of the denial of payment);

(g) If the condition for which 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 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,

(h) The veteran is not eligible for reimbursement under 38 U.S.C.A. § 1728 for the emergency treatment.

The action by the VAMC was based on the clear meaning of 38 U.S.C.A. § 1725 (2002) at the time.  Since that action, Congress has significantly amended 38 U.S.C.A. § 1725 effective from February 1, 2010.  The amendment provides that VA may provide reimbursement for emergency treatment when the veteran has a third-party payer, and also provides that payment may be made for treatment before the date of enactment of the amendment if the circumstances applicable to the veteran make it appropriate to do so.  See Expansion of Veteran Eligibility for Reimbursement by Secretary of Veterans Affairs for Emergency Treatment Furnished in a Non-Department Facility, Pub. L. No. 111-137, Stat. 3495.

Effective May 21, 2012, VA amended its regulations to be consistent with the Statute cited above.  The amended Regulation provides that payment may be considered even if an applicant has a third-party payer, and also provides that a claim may be filed as late as one year after May 21, 2012.  See amended 38 C.F.R. §§ 17.1001(g) and 17.1004(f).  The amended Regulation also specifies that if the claimant has contractual or legal recourse against a third-party payer, then VA becomes the secondary payer, but will not reimburse a claimant for deductible, copayment or similar amount the veteran owes the third party.  See amended 38 C.F.R. § 17.1005(e) and (f).  However, in the present case the Veteran does not have a third-party payer, so the amendments to the regulation are not applicable.   

Finally, under the provisions of 38 C.F.R. § 17.120, payment or reimbursement may be made for the expenses for emergency treatment no previously authorized under the following circumstances: (a) for veterans with service-connected disabilities, (b) in a medical emergency, (c) when Federal facilities are not available.

Evidence and Analysis

The Veteran apparently presented to the emergency room (ER) of the Omaha, Nebraska VA Medical Center (VAMC) on June 6, 2005, with an asthma exacerbation.  After waiting for a certain period of time, he departed the VA ER and went to the ER at the Nebraska Medical Center (NMC), where he was treated for a short time and then released.  The Veteran identified VA as being responsible to NMC for payment of the charges, and when NMC billed VA the charges were rejected.  The Veteran now seeks payment or reimbursement for the charges, for which he is responsible to NMC.  

The Originating Agency considered whether payment or reimbursement could be made under 38 U.S.C.A. § 1738, 38 U.S.C.A. § 17.135 (Millennium Bill Act) or under 38 C.F.R. § 17.120, but denied concluded that payment or reimbursement could not be made under any of those provisions because VA facilities had been reasonably available at the time of the service provided.

There are no contemporaneous records from the VA ER dating from June 6, 2005, presumably because the Veteran departed before being seen by a medical provider.

Treatment records from NMC ER show that triage began at 1720 (5:20 p.m.), during which the Veteran reporting difficulty breathing for the past two days.  The Veteran stated he had been at the VAMC for two hours, but because the VA facility was "busy" he left the VAMC and came to NMC.  The NMC intake summary characterized the Veteran's symptoms as mild-to-moderate and significant for wheezing, nonproductive cough and nasal congestion; there was no fever or chest pain and the Veteran did not appear to be in distress.  The Veteran was discharged home at 1841 (6:41 p.m.), June 6, 2005.

The Veteran called VA on June 10, 2005, to complain of a cough that he believed might be due to pneumonia.  He mentioned that he had come to the VA ER but there were no doctors available.

On June 12, 2005, the Veteran presented back to the VA ER complaining of shortness of breath for two weeks.  He reported having been evaluated at NMC four days previously and discharged on a regimen of prednisone that initially helped, but he now felt heaviness in the chest.  The Veteran was admitted for observation and oxygen therapy overnight in order to rule out pneumonia; he was discharged the following day with diagnosis of asthma exacerbation.

In September 2005 a VA physician reviewed the charges from June 6 and determined that VA care had been available.  This determination was subsequently endorsed by two other physicians in September 2006.  

The Originating Agency issued the decision on appeal in October 2005, citing as basis for denial that VA facilities were feasibly available to provide the care that had been provided by the non-VA facility.

The Veteran asserted in his Notice of Disagreement (NOD) and in his substantive appeal that he had waited for 30-40 minutes at the VA ER for treatment, at which point an ER nurse came out and told the waiting patients that they would not be seen for the next few hours because all available ER physicians were fully occupied with emergency codes.  Per the Veteran, the nurse advised the waiting patients to go home and return the following day.  The Veteran felt his symptoms were too severe to wait until the next day, and he told the nurse he intended to go to NMC ER for treatment, and the nurse told him "okay" or "go ahead."  The Veteran thereupon proceeded to NMC.

The Agency of Original Jurisdiction issued a Supplemental Statement of the Case (SSOC) in August 2011 continuing the denial or payment or reimbursement.  The SSOC noted that the Veteran had been at NMC ER for "a little less than an hour" [sic] and that treatment at NMC had consisted of inhalers and oral steroids; the Veteran did not appear to be in crisis (status asthmaticus) or to need critical care.  The SSOC concluded that the VA medical facility was available and should have been utilized, especially since the Veteran was initially at the VA ER and chose to leave.

On review, the Veteran appears to essentially contend that VA facilities were not available to him on the day in question because the VA ER nurse had purportedly advised everyone to go home and return the following day.  The Board disagrees.  There is no indication that the VA ER effectively shut down or that the waiting patients were ordered out; rather, a reasonable interpretation of the nurse's statement (as paraphrased by the Veteran) was that a lengthy wait was anticipated and that any patients able to wait until the next day should consider doing so.  Although the Veteran characterizes his symptoms as being so severe that he could not wait, the clinical notes from NMC (which characterized his symptoms as mild-to-moderate) do not suggest that he could not have reasonably waited for the predicted one or two hours until he could be seen at the VA ER.  Thus, the Veteran's decision to leave the VA ER was entirely voluntary and does not alter the Board's conclusion that VA medical treatment facility was reasonably available.

The Board observes that the Veteran may have thought, in good faith, that the reported "go ahead" of the VA ER nurse constituted authorization by VA to go to a non-VA provider, but this belief does not show entitlement to the benefit claimed.  In the similar case of Smith v. Derwinski, 2 Vet. App. 378 (1992), the claimant asserted the private medical treatment he obtained was "pre-authorized" because his treating VA physician had told him that arrangements were made for him to be treated at the outside hospital.  However, the Court held that the advice of a doctor to go to a non-VA hospital - even when actually given - was not the specific type of authorization contemplated by the regulation.  Smith, 2 Vet. App. 378-79.

Finally, the Veteran appears to be asserting an argument that he is entitled to reimbursement in equity because he acted in good-faith reliance on payment or reimbursement, to his detriment.  While the Board is sympathetic toward the Veteran, the Board is bound by law, and its decision is dictated by the relevant statutes and regulations.  Moreover, the Board is without authority to grant benefits simply because it might perceive such a grant to be equitable.  See 38 U.S.C.A. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994).  

Based on review of the evidence of record, the Board finds that payment or reimbursement of the claimed non-authorized medical expenses is not warranted.




ORDER

Entitlement to payment or reimbursement of unauthorized medical services provided at the Nebraska Medical Center on June 6, 2005, is denied.




____________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs