Citation Nr: 1335035 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 09-18 958 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Medical Center (MC) in Canandaigua, New York THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred for treatment at the Oswego Hospital, from April 2, 2008 to April 8, 2008. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran served on active duty from October 1959 to September 1963, and from June 1966 to February 1969. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2008 decision in which the Canandaigua VAMC approved VA payment or reimbursement of medical expenses incurred for treatment at the Oswego Hospital from March 29, 2008 to April 1, 2008, only; denying payment for the period extending from April 2, 2008 to April 8, 2008. In January 2009, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in March 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in May 2009. An October 2013 review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal, except for a September 2013 brief presented by the Veteran's representative. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. The Veteran incurred medical expenses for in conjunction with treatment provided at the Oswego Hospital from March 29, 2008 to April 8, 2008. 3. VA approved payment or reimbursement of unauthorized medical expenses incurred during his hospitalization at Oswego Hospital from March 29, 2008 to April 1, 2008. 4. The totality of the evidence reveals that medical staff at the Oswego Hospital, as well as a VA Chief Of Staff, determined that the Veteran was medically stable as of April 2, 2008 and that the Veteran could have been safely transferred to a VA facility on that day for continuation of treatment. (In other words, the Veteran's condition was considered stable between April 2, 2008 and April 8, 2008). 5. On April 2, 2008, the Veteran signed a form indicating his choice not to be transferred to a VA facility; accordingly, he remained at the Oswego Hospital until the date of his discharge on April 8, 2008. CONCLUSION OF LAW The criteria for payment or reimbursement of unauthorized medical expenses incurred for treatment at Oswego Hospital, from April 2, 2008, to April 8, 2008, are not met. 38 U.S.C.A. §§ 1728, 5107 (West 2002); 38 C.F.R. §§ 3.102, 17.120, 17.121, 17.130, 17.1005 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). In connection with the claim on appeal, the Veteran and his representative have been notified of the reasons for the denial of the claim, and have been afforded the opportunity to present evidence and argument with respect to the claim. The Board finds that these actions are sufficient to satisfy any duties to notify and assist owed the Veteran. As will be explained below, the claims lack legal merit. As the law, and not the facts, is dispositive of the claim, the duties to notify and assist imposed by the VCAA are not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). See also Manning v. Principi, 16 Vet. App. 534, 542-543 (2002) (the provisions of the VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts are dispositive in a matter). II. Analysis The Veteran is seeking VA payment or reimbursement for unauthorized medical expenses he incurred for treatment at Oswego Hospital from April 2, 2008 to April 8, 2008 The record reflects that the Veteran has been in receipt of a total 100 percent disability rating since April 2007. He has several service-connected disabilities, including residuals of stroke, left-sided hemiplegia, loss of use of one hand and foot, left side associated with Type II diabetes mellitus, which is rated as 100 percent disabling in and of itself. The file includes a discharge summary from the Oswego Hospital reflecting treatment from March 29, 2008 to April 8, 2008. The report indicates that the Veteran was a resident from a local nursing home, who was admitted primarily for unresponsiveness, and initially treated in the emergency room. The report indicated that during the Veteran's admission to the emergency room, VA was contacted and advised of the need for further care for the Veteran; VA responded that there were no beds available and the Veteran was ultimately admitted for hospitalization at the Oswego Hospital. Intubation and tests were administered and it was noted that the Veteran remained stable during his care. The report indicated that the family was convinced that the Veteran had improved during his hospitalization and were comfortable having him return to his nursing home facility. The Veteran was discharged on April 8, 2008 with diagnoses including neurocardiogenic syncope, recurrent history of cerebrovascular accident (CVA); and pneumonia, hypotension and diabetes mellitus, all described as improved. Also of record is a Non-VA Hospitalization Form, signed by the Veteran on April 2, 2008, the date upon which medical personnel from the Oswego Hospital determined that the Veteran had stabilized and could be transferred for further care by VA. On that form, the Veteran indicated that he understood the risks and consequences relating to potential transfer or non-transfer to a VA facility and marked a box reflecting that he chose not to transfer to a VA hospital, also acknowledging in such event, that he would be responsible for the bills associated with his private hospitalization. He further indicated that he elected to have Medicare and/or private insurance billed for his hospitalization. The form provided that if the Veteran was unable to sign, the form should be signed by a spouse or other responsible party (such as a durable power of attorney). The Veteran's signature was witnessed by an LPN. In a July 2008 decision, the VAMC in Canandaigua, New York, approved payment or reimbursement of unauthorized medical expenses incurred for treatment at the Oswego Hospital from March 29, 2008 through April 1, 2008. However, payment for the period of treatment extending from April 2, 2008 to April 8, 2008, was denied, as it was determined that the Veteran's condition had stabilized during that time and that he had refused to be transferred to a VA medical facility. In a statement from the Veteran dated in September 2008, he indicated that he had been in the ICU until April 2, 2008, when he was asked to sign the Non-VA Hospitalization Form, and at that time he was transferred to a regular room. He stated that he had no recollection of signing the form. He mentioned that he was 100 percent service-connected and had received excellent care from VA. He also stated that his sister was his legal power of attorney (POA) and indicated that she was not contacted in conjunction with the Non-Transfer Form. Also provided for the file were lay statements from the Veteran's brother and sister, both attesting to the Veteran's emergent and generally unresponsive condition while privately hospitalized, and noting that they had not been consulted in conjunction with any discussion or form relating to a transfer to a VA medical facility. The Veteran's sister also mentioned that she held POA for the Veteran. Generally, the admission of a veteran to a non-VA facility at VA expense must be authorized in advance. See 38 C.F.R. § 17.54 (2013). Here, the Veteran's treatment at the Oswego Hospital from March 29, 2008 to April 8, 2008, was not authorized by VA, and the Veteran does not so contend. Nevertheless, under the versions of 38 U.S.C.A. § 1728(a) and 38 C.F.R. § 17.120 in effect at the time of the treatment here at issue, VA may reimburse veterans for unauthorized medical expenses incurred in non-VA facilities under the following circumstances: (a) For veterans with service connected disabilities. Care or services not previously authorized were rendered to a veteran in need of such care or services: (1) For an adjudicated service-connected disability; (2) For nonservice-connected disabilities associated with and held to be aggravating an adjudicated service-connected disability; (3) For any disability of a veteran who has a total disability permanent in nature resulting from a service-connected disability (does not apply outside of the States, Territories, and possessions of the United States, the District of Columbia, and the Commonwealth of Puerto Rico); (4) For any illness, injury or dental condition in the case of a veteran who is participating in a rehabilitation program under 38 U.S.C. Ch. 31 and who is medically determined to be in need of hospital care or medical services for any of the reasons enumerated in § 17.48(j); and; (b) In a medical emergency. Care and services not previously authorized were rendered in a medical emergency of such nature that delay would have been hazardous to life or health, and; (c) When Federal facilities are unavailable. VA or other Federal facilities were not 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. All three statutory requirements (a, b, and c) must have been met before the reimbursement may be authorized. See Zimick v. West, 11 Vet. App. 45, 49 (1998); Hayes v. Brown, 6 Vet. App. 66, 68 (1993). No reimbursement or payment of services not previously authorized will be made when such treatment was procured through private sources in preference to available Government facilities. See 38 C.F.R. § 17.130 (2007, 2013). Since the Veteran in this case has a total disability permanent in nature resulting from a service-connected disability, the Veteran is eligible for payment or reimbursement of "unauthorized" medical expenses incurred at a non-VA facility under 38 U.S.C.A. § 1728(a). In this regard, VA itself recognized that between March 29, 2008 and April 1, 2008, the Veteran met the aforementioned criteria, and approved payment for a portion of the Veteran's private and previously unauthorized treatment at the Oswego Hospital. Effective October 10, 2008, the provisions of 38 U.S.C.A. § 1725 and § 1728 were amended. See Veterans' Mental Health and Other Care Improvements Act of 2008, Pub. L. No. 110-387, § 402, 122 Stat. 4110 (2008). This bill made various changes to Veteran's mental health care and also addresses other health care related matters. The changes are liberalizing in that they make reimbursement for medical expenses mandatory instead of discretionary, as well as expand the definition of "emergency treatment" beyond the point of stabilization. In addition, the changes apply the more liberal prudent layperson standard for determining whether an actual medical emergency existed under either 38 U.S.C.A. § 1725 and § 1728. The amended law expands the meaning of "emergency treatment" under section 1725(f)(1) by stating: (1) The term "emergency treatment" means medical care or services furnished, in the judgment of the Secretary- (A) when Department or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable; (B) when such care or services are rendered in a medical emergency of such nature that a prudent layperson reasonably expects that delay in seeking immediate medical attention would be hazardous to life or health; and (C) until-- (i) such time as the Veteran can be transferred safely to a Department facility or other Federal facility and such facility is capable of accepting such transfer; or (ii) such time as a Department facility or other Federal facility accepts such transfer if- (I) at the time the Veteran could have been transferred safely to a Department facility or other Federal facility, no Department facility or other Federal facility agreed to accept such transfer; and (II) the non-Department facility in which such medical care or services was furnished made and documented reasonable attempts to transfer the Veteran to a Department facility or other Federal facility. See 38 U.S.C.A. § 1725 (West 2002 & Supp. 2012). Effective January 20, 2012, VA regulations implementing 38 U.S.C.A. § 1725 and § 1728 were amended to conform to the statutory changes. See 76 Fed. Reg. 79,067-79,072 (December 21, 2011). The amendments affected the following Title 38 regulations: 38 C.F.R. §§ 17.120, 17.121, 17.1001, 17.1002, 17.1005, 17.1006, and 17.1008. Significantly, the statutory changes also resulted in changes made to the VA regulations, to the effect that if a 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. §§ 17.121(c) (2009 to 2013) and 17.1005(d) (2013). In this appeal, it was determined both by medical personnel at the Oswego Hospital and the VA Chief of Staff that the Veteran's medical condition stabilized as of April 2, 2008. However, at that time, on a Non-VA Hospitalization Form signed by the Veteran on April 2, 2008, the Veteran affirmatively elected not to transfer to a VA hospital, indicating that he understood the risks and consequences relating to potential transfer or non-transfer to a VA facility. The form provided that if the Veteran was unable to sign, the form should be signed by a spouse or other responsible party (such as a durable power of attorney). In this case, the Veteran was able to sign and his signature was witnessed by an LPN. As such, consultation and approval by a POA or family member was not required. Although the law has changed several times during the pendency of this claim, the disposition of this appeal is not affected. No reimbursement or payment of services not previously authorized will be made when such treatment was procured through private sources in preference to available Government facilities, as is essentially the case here. See 38 C.F.R. § 17.130 (2007, 2013). That older regulation, in and of itself, results in a denial of the claim. Later changes in the applicable VA regulations yield the same result. Under later VA regulations, if a 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. §§ 17.121(c) (2009) and 17.1005(d) (2013). Such action was taken in this case, and denied from the April 2, 2008, dated of refusal to transfer, until the April 8, 2008, date of discharge. The Board is sympathetic to the Veteran's financial situation, and the confusion and complexity of the VA regulations relating to stabilization and transfers to VA medical facilities. However, the Board is bound by the law as written. As, on these facts, there is no legal theory that would permit VA payment or reimbursement of the medical expenses in question, the Veteran's claim must be denied as lacking legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Payment or reimbursement of unauthorized medical expenses incurred for treatment at the Oswego Hospital, from April 2, 2008 to April 8, 2008, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs