Citation Nr: 1326692 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 11-26 647 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Albany, New York THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses for private medical treatment received between November 12, 2010 and November 22, 2010. ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from January 1979 to May 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 decision of a VA Medical Center (VAMC) of the Department of Veterans Affairs (VA) in Albany, NY. FINDINGS OF FACT 1. From November 11, 2010 to November 22, 2010, the Veteran received medical treatment that was not previously authorized by VA for complaints of chest pain at Nathan Littauer Hospital and Ellis Hospital, which are non-VA hospitals. 2. Payment of hospitalization expenses was subsequently approved by VA for hospitalization and treatment on November 11, 2010. 3. The medical care the Veteran received from November 12, 2010 to November 22, 2010 was for a condition that a prudent layperson would have reasonably expected that a delay in treatment would have been hazardous to life or health. 4. For the period from November 12, 2009 to November 22, 2009, the Veteran's condition was not stabilized such that transfer to a VA facility could be accomplished without material deterioration of the medical condition within a reasonable medical probability. CONCLUSIONS OF LAW Resolving reasonable doubt in the appellant's favor, the criteria are met for payment or reimbursement of the unauthorized medical expenses incurred from November 12, 2010 to November 22, 2010, at Ellis Hospital. 38 U.S.C.A. §§ 1703(a), 1725, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 17.52(a), 17.120, 17.1000-17.1002 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 appellant 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. 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 In claims involving payment/reimbursement by VA for medical expenses incurred as a result of treatment at a private facility, it must first be determined whether the services for which payment is sought were authorized in advance by VA. 38 U.S.C.A. § 1703(a) (West 2002); 38 C.F.R. § 17.54 (2012); see also Malone v. Gober, 10 Vet. App. 539, 541 (1997). This is a factual, not a medical, determination. Similes v. Brown, 6 Vet. App. 555, 557 (1994). If not authorized, it must be determined whether the claimant is otherwise entitled to payment or reimbursement for services. The law provides that, in connection with its statutory obligation to provide medical services to appellant, VA may contract for private hospital care in certain limited circumstances, including cases where a medical emergency exists. Pursuant to 38 U.S.C.A. § 1703(a) (West 2002), "[w]hen [VA] facilities are not capable of furnishing . . . the care or services required, the Secretary, as authorized in [38 U.S.C.A. § 1710], may contract with non-Department facilities in order to furnish" certain care, including: "[h]ospital care or medical services for the treatment of medical emergencies which pose a serious threat to the life or health of a veteran receiving medical services in a Department facility . . . until such time following the furnishing of care in the non-Department facility as the veteran can be safely transferred to a Department facility." 38 U.S.C.A. § 1703(a)(3) (West 2002); 38 C.F.R. § 17.52 (2012). The admission of an appellant to a non-VA hospital at the expense of VA must be authorized in advance. 38 C.F.R. § 17.54 (2012); see Malone v. Gober, 10 Vet. App. 539, 541 (1997); see also General Counsel Opinion, VAOPGCCONCL 1-95, at 9 (Mar. 31, 1995) ("Authorization in advance is essential to any determination as to whether the Department is or is not going to furnish the contract care."). 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 (2012). In the present case, the evidence does not show that the Veteran sought and obtained prior proper authorization for VA payment of the private medical expenses he incurred from November 11, 2010 to November 22, 2010. The record does indicate, however, that Ellis Hospital, according to the August 2011 VA Form 9, attempted to contact VA on behalf of the Veteran on November 12, within 72 hours of the initial care at that facility. Allegedly, VA did not respond until November 16, 2010. Accordingly, the Board must conclude that prior authorization for the private medical treatment received was not obtained pursuant to 38 C.F.R. § 17.54 (2012), and that payment is not warranted for expenses incurred in conjunction with that treatment under 38 U.S.C.A. § 1703 (West 2002). When a 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. 2013). Application of either statute is generally dependent on whether the veteran has an adjudicated service-connected disability. Initially, the Board notes that under 38 U.S.C.A. § 1725 , pursuant to the Veterans Millennium Health Care and Benefits Act, payment or reimbursement of non-VA emergency medical services for nonservice-connected disorders for veterans without insurance is available if certain conditions are met. 38 U.S.C.A. § 1725 (West 2002); 38 C.F.R. §§ 17.1000-17 (2012). When, as here, a veteran receives treatment at a non-VA facility without prior authorization, there are two statutes that allow for reimbursement for the medical expenses incurred for that treatment, 38 U.S.C.A. § 1728 (West 2002) and 38 U.S.C.A. § 1725. Application of either statute is generally dependent on whether the veteran has an adjudicated service-connected disability. Under 38 U.S.C.A. § 1728 , payment or reimbursement of the expenses of care not previously authorized, in a private or public hospital not operated by VA, may be paid when the veteran received care for: (a) an adjudicated service-connected disability; (b) non-service-connected disabilities associated with and held to be aggravating an adjudicated service-connected disability; (c) any disability of a veteran who has a total disability permanent in nature resulting from a service-connected disability; or (d) any illness, injury or dental condition in the case of a veteran who is participating in a rehabilitation program under 38 U.S.C. Chapter 31 and who is medically determined to be in need of hospital care or medical services for any of the reasons enumerated in 38 C.F.R. § 17.48(j). 38 U.S.C.A. § 1728(a)(2); 38 C.F.R. § 17.120(a). In this case, the Veteran has no adjudicated service-connected disabilities. For this reason, there is no possibility of him meeting these requirements of 38 U.S.C.A. § 1728 (a)-(c) for payment or reimbursement of the expenses of care not previously authorized in a private or public hospital not operated by VA, as these provisions all depend upon the existence of a service-connected disability. There also is no evidence or allegation he is participating in a vocational rehabilitation program under 38 U.S.C. Chapter 31, which in certain instances might have qualified him under 38 U.S.C.A. § 1703(a) or 38 U.S.C.A. § 1728(d). Consequently, the only possible means for reimbursement of the unauthorized medical expenses in this case is by way of 38 U.S.C.A. § 1725, for treatment of disabilities that are not service connected, pursuant to the Veterans Millennium Health Care and Benefits Act (Millennium Act). Under 38 U.S.C.A. § 1725, pursuant to the Millennium Act, payment or reimbursement of non-VA emergency medical services for non-service-connected disorders for veterans without insurance is available if certain conditions are met. 38 U.S.C.A. § 1725; 38 C.F.R. § 17.1000-17 .1008. Specifically, under 38 C.F.R. § 17.1002 (substantive conditions for payment or reimbursement), to be eligible for reimbursement under these provisions for a non-service-connected disorder, 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 before hand 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 (in other words, 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 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, as already explained, 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). The Court has observed that, given the use by Congress of the conjunctive "and" in this statute and regulation, all of the requirements would have to be met before reimbursement could be authorized. See Malone v. Gober, 10 Vet. App. 539, 542 (1997), citing Cotton v. Brown, 7 Vet. App. 325, 327 (1995); see also Hayes v. Brown, 6 Vet. App. 66 (1993) and Zimick v. West, 11 Vet. App. 45, 49 (1998). On November 11, 2010, the Veteran sought emergency room treatment at Nathan Littauer Hospital for acute chest pain and heartburn. His troponin levels were found to be elevated, and he was transferred that same day to Ellis Hospital for emergency cardiac care. There, he was provided an emergency cardiac catheterization, which indicated the need for coronary artery bypass grafting. A quadruple coronary artery bypass graft was performed on November 16, 2010. One of the grafts failed, and he was returned to surgery for a repair of the grafting. During this time, the Veteran continued to experience severe chest pain, and he was not considered stable for transport to a VA facility. He was subsequently discharged to home on November 22, 2010, with instructions to seek outpatient follow-up care. Upon receipt of a claim for payment, VA authorized payment for November 11, 2010 only, finding that the Veteran was stable for transfer after that date. Resolving reasonable doubt in the Veteran's favor, the Board finds that the conditions for reimbursement set forth in 38 C.F.R. § 17.1002 are met. Emergency services were provided in a hospital emergency department or a similar facility held out as providing emergency care to the public. While the Veteran was transferred to a ward outside the emergency department, he was admitted to the intensive care unit of Ellis Hospital, and his condition did not permit for discharge or transfer due to concerns about his cardiac health and need for a coronary artery bypass graft, according to a statement by one of his treating physicians. See 38 C.F.R. § 17.1002(a). In denying the claim for payment, VA asserted only that the Veteran had stabilized, without providing a rationale to support this assertion. The Board finds that the record does not support such a finding, as the evidence is at least in equipoise on the question of whether the Veteran had stabilized at any time from November 12, 2010 to November 22, 2010. In a March 2011 statement, a private treating cardiologist reported the Veteran's need for immediate surgery upon admittance, as well as for intensive care treatment and follow-up surgery due to complications. That physician thus concluded that the Veteran was not stable for transfer during his admission to the Ellis Hospital. As this opinion was rendered by a physician who physically examined and treated the Veteran in November 2010, it is found highly probative by the Board. The remainder of the conditions for payment or reimbursement must also be considered. Given that payment for the first day of the Veteran's treatment was approved by VA, the Board concludes that at the time the emergency treatment was furnished, the Veteran was enrolled in a 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. 38 C.F.R. § 17.1002(e). The record contains no evidence indicating that the Veteran is not financially liable for his approximately five-week hospitalization. 38 C.F.R. § 17.1002(f). Moreover, the record contains no evidence that the Veteran has coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the treatment in question. 38 C.F.R. § 17.1002(g). The condition for which the Veteran received emergency treatment was not caused by a work-related accident. 38 C.F.R. § 17.1002(h). The Veteran, furthermore, is not eligible for reimbursement under 38 U.S.C. 1728 for the emergency treatment provided (38 U.S.C. 1728, as already explained, 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(i). With the resolution of reasonable doubt in the Veteran's favor, the Board finds that all of the criteria under 38 C.F.R. § 1725 have been met throughout the stay at the Ellis Hospital; therefore, payment or reimbursement of his expenses is warranted from November 12, 2010 to discharge on November 22, 2010. See generally 38 C.F.R. § 17.1002. ORDER Payment or reimbursement of unauthorized medical expenses incurred in connection with hospitalization from November 12, 2010 to November 22, 2010 is granted. _________________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs