Citation Nr: 1331214 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 10-17 111 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Sepulveda, California THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred in connection with hospitalization from August 29, 2007 to September 13, 2007 at San Joaquin Community Hospital (SJCH). REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from June 1969 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 decision of the Greater LA Healthcare System in Sepulveda, California, by which reimbursement of unauthorized medical expenses for medical treatment provided to the Veteran by SJCH from August 29, 2007 to September 13, 2007 was denied. In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed the Veteran's file on the "Virtual VA" system to ensure a complete assessment of the evidence. FINDINGS OF FACT 1. On August 29, 2007, the Veteran was admitted to the SJCH (a public hospital) emergency department with a fever of 105 degrees and chest pain; he was diagnosed with acute febrile illness with leukocytosis and hypoxemia, and acute early bilateral pneumonia. He is not service connected for any disability. 2. The medical care the Veteran received from August 29, 2007 to September 13, 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. 3. For the medical care the Veteran received from August 29, 2007 to September 13, 2007, there were no VA medical facilities feasibly available and an attempt to use them beforehand would not have been reasonable. 6. At the time of treatment at SJCH, 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. 7. The Veteran is financially liable to the provider of the treatment (SJCH) for the treatment rendered from August 29, 2007 to September 13, 2007. 8. The Veteran had no coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the treatment. 9. 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. 10. 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 Veteran's favor, the criteria for payment or reimbursement of the unauthorized medical expenses incurred from August 29, 2007 to September 13, 2007 at SJCH 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 (2013). 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) (2013). 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 August 29, 2007 to September 13, 2007 qualifies for reimbursement. The Veteran was initially seen in the emergency department of SJCH; 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 SJMH on August 29, 2007. He presented with a high fever of 105 and chest pains. He was diagnosed with acute febrile illness with leukocytosis and hypoxemia, and acute early bilateral pneumonia. Later that day, an emergency department report indicated that the Veteran was not transferable as VA informed SJMH that there was no immediate bed space and that the Veteran would need a monitored bed, which was not available at the West Los Angeles VAMC. In addition, the report indicated that the Veteran was not transferable for medical reasons, in view of the hypoxemia. As such, the Veteran continued treatment at SJCH. In a thoracic surgical consultation, dated September 4, 2007, the providing physician indicated that, in agreement with an infectious disease physician, the Veteran would need at least one more week of intravenous antibiotics to sterilize the blood before mitral valve replacement. In a cardiovascular lab report, while the results of the coronary angiography were normal, the Veteran was nonetheless transferred back to Telemetry, where his condition would continue to be closely monitored. The day of discharge, on September 13, 2007, a pulmonary critical care note explained that shortly after the Veteran's arrival, the chest x-ray did not defend the initial diagnosis of bilateral pneumonia; however, the Veteran continued to have fever and marked leukocytosis. He was subsequently demonstrated to have a prominent murmur. An A2-D echocardiogram suggested endocarditis, which was confirmed by a transesophageal echocardiogram. Prior to scheduling surgery (mitral valve replacement), VA requested that the Veteran be transferred to the VA facility. SJCH immediately complied with VA's request on September 13, 2007. Despite the assertion of the Greater LA Healthcare System, to include a VA physician, that the Veteran's medical condition had stabilized and VA facilities were feasibly available for care and transfer, SJCH treatment notes clearly show that an attempt to have the Veteran transferred to the VA facility was made as early as August 29, the same day he was admitted to the emergency room, and it was noted that no beds were available for the Veteran's particular condition. As the Veteran's treatment was continued in Telemetry, it is clear that his condition had not improved and he was no longer stable. The medical records therefore clearly demonstrate that an attempt had been made to have the Veteran transferred as of his initial stabilization and the Greater LA Healthcare System informed the facility that no beds were available. Once the Greater LA Healthcare System requested that the Veteran be transferred to them for mitral valve replacement, SJCH immediately transferred him. In short, given the nature of what appeared to be a temporary, initial stabilization, the continued monitoring of the Veteran's condition in Telemetry, and the fact that a SJCH physician recommended that the Veteran undergo at least one more week of intravenous antibiotics (as of September 4, 2007) to sterilize the blood before surgical intervention, 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. The Veteran himself stated, in a May 2008 submission, that SJCH stabilized his condition in order to transport him to the West Los Angeles VAMC where he underwent heart surgery. Indeed, the nearest VA Medical Center with the appropriate facilities to treat the Veteran's condition is located in Los Angeles, California, which is approximately 108 miles away and thus, was not feasibly available. Further, given the circumstances and nature of the Veteran's continuing medical emergency, including an attempt to transfer the Veteran to the West Los Angeles VAMC (which had, in fact, been initiated on the morning of August 29, 2007, but turned out to in fact have not been feasible due to medical reasons (hypoxemia) and the unavailability of a bed at VA for the Veteran) 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 SJCH indicated that the Veteran was being treated by a VA physician, including within the 24-month period preceding August 29, 2007 (when the Veteran was initially admitted at SJCH). As such, the Veteran was enrolled in the VA health care system at the time of the August 29, 2007 to September 13, 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 August 29, 2007 to September 13, 2007. 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 the high fever, chest pains, pneumonia, leukocytosis, and hypoxemia were etiologically related to his military service. Indeed, the Veteran was not service connected for any disability, nor is there any indication that he applied for such compensation (aside from non-service connected pension), 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 Veteran's favor, the Board finds that the requirements for payment or reimbursement for unauthorized medical treatment furnished by SJCH from August 29, 2007 to September 13, 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 August 29, 2007 to September 13, 2007 at SJCH is granted. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs