Citation Nr: 1324788 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 09-42 206A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Miami, Florida THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred in connection with hospitalization from December 2, 2007 through December [redacted], 2007 at Homestead Hospital (HH). ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran served on active duty from May 1964 to May 1967. The Veteran died in December 2007 and the appellant is the Veteran's surviving spouse. The appellant appointed a limited power-of-attorney who filed an appeal to the matter on her behalf. A notice of disagreement or substantive appeal may be filed by the appellant, or by his representative, if a proper power-of-attorney or declaration of representation, as applicable, is on the record or accompanies such NOD or substantive appeal. 38 C.F.R. § 20.301 (2012). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 decision of the Miami VA Medical Center (VAMC) in Miami, Florida, by which reimbursement of unauthorized medical expenses for medical treatment provided to the Veteran by HH from December 2, 2007 to December [redacted], 2007 was denied. In the November 2009 substantive appeal, the appellant, through her power-of-attorney, requested a personal hearing before a member or members of the Board. In a subsequent letter sent to the appellant in January 2013, the RO informed the appellant of a Board hearing scheduled in February 2013. Neither she nor her power-of-attorney appeared. Accordingly, the hearing request is considered to have been withdrawn. See 38 C.F.R. § 20.702 (2012). As noted below, payment or reimbursement for care received at HH from November 29, 2007 to December 2, 2007 was previously approved by the Miami VAMC in May 2008. Although it is unclear from the record whether expenses were approved through December 2, 2007 or up to December 2, 2007, for clarity and to ensure that each day in question is addressed, the dates for payment or reimbursement for care have been changed as listed on the title page to more accurately reflect the contested dates for payment or reimbursement period on appeal, that of December 2, 2007 to December [redacted], 2007. FINDINGS OF FACT 1. On November 29, 2007, the Veteran was admitted to the HH (a public hospital) emergency department with chronic obstructive pulmonary disease (COPD) exacerbation, acute respiratory failure with hypoxemia, and myocardial infarction. He was not service connected for any disability. He died at HH on December [redacted], 2007. 2. Payment of hospitalization was authorized by VA from November 29, 2007 to December 2, 2007. 3. The medical care the Veteran received from December 2, 2007 to December [redacted], 2007 was for a condition of such a nature that a prudent layperson would have reasonably expected that a delay in treatment would have been hazardous to life or health. 4. For the medical care the Veteran received from December 2, 2007 to December [redacted], 2007, there were no VA medical facilities feasibly available and an attempt to use them beforehand would not be reasonable. 5. At the time of treatment at HH, the Veteran was enrolled in the VA health care system and received VA health care within the 24-month period preceding the unauthorized emergency treatment. 6. The Veteran was, and the appellant is, financially liable to the provider of the treatment (HH) for the treatment rendered from November 29, 2007 to December [redacted], 2007. 7. The Veteran had no coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the treatment. 8. The Veteran had no other contractual or legal recourse against a third party that would, in whole or in part, extinguish such liability to the provider for the treatment. 9. The Veteran is not eligible for reimbursement for medical care or services under 38 U.S.C.A. § 1728. CONCLUSION OF LAW Resolving reasonable doubt in the appellant's favor, the criteria for payment or reimbursement of the unauthorized medical expenses incurred from December 2, 2007 to December [redacted], 2007 at HH have been met. 38 U.S.C.A. §§ 1703(a), 1725, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 17.52(a), 17.120, 17.1000-1008 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Board is satisfied that all relevant facts regarding the claim on appeal being addressed herein have been properly developed and no further assistance to the Veteran is required in order to comply with the duty to notify or assist. This case concerns a legal determination of whether the appellant is entitled to reimbursement for unauthorized private medical expenses under 38 U.S.C.A. §§ 1725 or 1728. For this reason, the provisions of the Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits do not apply. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In Barger v. Principi, 16 Vet. App. 132, 138 (2002) (involving waiver of recovery of overpayment claims), the U.S. Court of Appeals for Veterans Claims (Court) held that the provisions of the VCAA are not applicable to statutes and regulations which concern special provisions relating to VA benefits, and those statutes and regulations contain their own notice provisions. The provisions of Chapter 17 of the 38 U.S.C.A. and 38 C.F.R contain their own notice requirements. Regulations at 38 C.F.R. § 17.120-33 discuss the adjudication of claims for reimbursement of unauthorized medical expenses. According to 38 C.F.R. § 17.124, the appellant has the duty to submit documentary evidence establishing the amount paid or owed, an explanation of the circumstances necessitating the non-VA medical treatment, and "other evidence or statements that are deemed necessary and requested for adjudication of the claim." When a claim for reimbursement of unauthorized medical expenses is disallowed, VA is required to notify the claimant of its reasons and bases for denial, his or her appellate rights, and to furnish all other notifications or statements required by Part 19 of Chapter 38. 38 C.F.R. § 17.132. Regardless, as the Board is granting the benefit sought on appeal, a discussion of VA's duties to notify and assist is not necessary. Payment or Reimbursement of the Unauthorized Medical Expenses When the veteran receives treatment at a non-VA facility without prior authorization, two statutes allow for payment or reimbursement for the medical expenses incurred for that treatment, specifically, 38 U.S.C.A. §§ 1725 and 1728 (West 2002 & Supp. 2012). Application of either statute is generally dependent on whether the veteran has an adjudicated service-connected disability. In light of the fact that the Veteran was not service connected for any disability, the applicable law in this case is 38 U.S.C. § 1725. The Veterans Millennium Health Care and Benefits Act provides 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. §§ 17.1000-1003. Section 1725 was enacted as part of the Veterans Millennium Health Care and Benefits Act, Public Law 106-177, and is referred to as the "Millennium Bill Act." The Veterans Millennium Health Care and Benefits Act was enacted on November 30, 1999, and took effect 180 days after the date of enactment, i.e., on May 29, 2000. See Pub. L. 106-117, Title I, Subtitle B, § 111, 113 Stat. 1556. A VA interim final rule implementing the new statute provides that its effective date is May 29, 2000, and that VA would make retroactive payments or reimbursements for qualifying emergency care furnished on or after that date. See 66 Fed. Reg. 36,467 (2001). In this case, the service rendered occurred after the effective date of the "Millennium Bill Act." Therefore, it is potentially applicable to the current appeal. In this regard, the Veterans Millennium Health Care and Benefits Act provides general authority for reimbursement for the reasonable value of emergency treatment furnished in a non-Department facility to those veterans who are active Department health-care participants (i.e., enrolled in the annual patient enrollment system and recipients of Department hospital, nursing home, or domiciliary care under such system within the last 24-month period) and who are personally liable for such non-VA treatment and are not eligible for reimbursement under the provisions of 38 U.S.C.A. § 1728. See 38 U.S.C.A. § 1725; 38 C.F.R. §§ 17.1000-1008. Moreover, under current laws and regulations (see VETERANS' MENTAL HEALTH AND OTHER CARE IMPROVEMENTS ACT OF 2008, Pub. L. 110-387, October 10, 2008, 122 Stat 4110), in order to be eligible for payment or reimbursement for emergency services for non-service connected conditions in non-VA facilities, a veteran must show that his or her treatment satisfies 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; (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 layperson; (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 has no coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the emergency treatment; (g) 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 (h) 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, 38 C.F.R. § 17.1000-1008. Failure to satisfy any one of the above criteria precludes VA from paying or reimbursing unauthorized private medical expenses. (Note: In 2012, these criteria were amended. The following criterion was deleted: 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)). For clarity, the Board will separately address each of the above-listed criteria to ascertain if the medical treatment the Veteran received from December 2, 2007 to December [redacted], 2007 qualifies for reimbursement. The Veteran was initially seen in the emergency department of Homestead Hospital (HH); thus, it is clear that the medical services provided to the Veteran were administered in a hospital emergency department or a similar facility held out as providing emergency care to the public. Historically, the Veteran was admitted to the emergency department of HH on November 29, 2007. He was subsequently admitted to the intensive care unit (ICU) at HH. By December 2, 2007, the Veteran was transferred out of the ICU to Telemetry where his condition would continue to be closely monitored. While the Veteran's condition did improve, the apparent improvement remained guarded as evidenced by the transfer to Telemetry. In fact, a December 3, 2007 progress note indicated that that Veteran's condition was "slowly improving." According to a note from approximately 10:10 AM on December 5, 2007, VA Community Based Outpatient Clinic (CBOC) at Homestead was contacted by HH to determine the procedure for transferring the Veteran to a VAMC. The Homestead VA CBOC representative indicated that the Veteran would either need to be transferred directly to a VAMC or be discharged directly to an appointment with the Veteran's primary care physician along with medical documentation of his pulmonary status. The HH representative noted that she would talk with the Veteran and the attending physician; however, in just over one hour, by 11:30 AM on December 5, 2007, the Veteran was again in deep distress, was intubated, and transferred to the ICU. He remained in the ICU at HH until he died on December [redacted], 2007 from cardiac arrest. Given the Veteran's pulmonary and cardiac history, the tenuous nature of what appeared to be a temporary improvement, the sudden worsening of the Veteran's condition on December 5, 2007, and the fact of his subsequent death on December [redacted], 2007, the Board finds that the Veteran's condition was of such a nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to his life or health. Indeed, the nearest VA Medical Center with the appropriate facilities to treat the Veteran's condition is located in Miami, Florida, which is approximately 34 miles away and thus, was not feasibly available. Further, given the circumstances and nature of the Veteran's medical emergency, including an attempt for the Veteran to travel to or transport him to the Miami VA Medical Center (which had, in fact, been initiated on the morning of December 5, 2007 but turned out to in fact have not been feasible due to worsened medical condition) would not have been considered reasonable by a prudent layperson. Although the record reflects no disability for which service connection has been granted, progress notes from the Veteran's hospitalization at HH indicated that the Veteran was being treated by a VA physician, including within the 24-month period preceding November 29, 2007 (when the Veteran was initially admitted at HH). As such, the Veteran was enrolled in the VA health care system at the time of the December 2, 2007 to December [redacted], 2007 hospitalization. The evidence of record includes documents demonstrating that the Veteran is financially liable for the expenses incurred as a result of the medical services administered during his hospitalization from December 2, 2007 to December [redacted], 2007. Pursuant to his death, his surviving spouse, the appellant in this case, is financially liable for these expenses. The evidence of record does not demonstrate that the Veteran had coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the emergency treatment beyond the VA health care system. There is no indication from the record that the medical emergency experienced by the Veteran was caused by a work-related injury or any other party. Consequently, there are no third parties from whom the Veteran could seek reimbursement for the subsequent medical expenses. With respect to the Veteran's eligibility for reimbursement pursuant to 38 U.S.C.A. § 1728, such eligibility is limited to treatment for disabilities for which service connection has been granted, a nonservice-connected disability associated and aggravated by a service-connected disability, any service-connected disability that has been determined to result in total disability that is permanent in nature, or any illness, injury, or dental condition of a Veteran who is a participant of a vocational rehabilitation program. See 38 U.S.C.A. § 1728(a). The documents of record do not include or even suggest an opinion wherein his pulmonary and cardiac conditions were etiologically related to his military service. Indeed, the Veteran was not service connected for any disability within his lifetime, nor is there any indication that he applied for such compensation, or that he participated in a vocational rehabilitation program. Consequently, the Board finds that the Veteran is not eligible for reimbursement under 38 U.S.C.A. § 1728. For these reasons, and resolving reasonable doubt in the appellant's favor, the Board finds that the requirements for payment or reimbursement for unauthorized medical treatment furnished by HH from December 2, 2007 to December [redacted], 2007, under the amended version of 38 U.S.C.A. § 1725, have been met. ORDER Payment or reimbursement of unauthorized medical expenses incurred in connection with hospitalization from December 2, 2007 through December [redacted], 2007 at HH is granted. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs