Citation Nr: 1336822	
Decision Date: 11/13/13    Archive Date: 11/26/13

DOCKET NO.  11-09 923	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Tennessee Valley Healthcare System, Murfreesboro, Tennessee


THE ISSUE

Entitlement to payment or reimbursement of unauthorized medical expenses incurred at Hendersonville Medical Center in Hendersonville, Tennessee, from July 24, 2010 to July 26, 2010.


WITNESSES AT HEARING ON APPEAL

Appellant and his daughter.


ATTORNEY FOR THE BOARD

K.S. Hughes, Counsel



INTRODUCTION

The Veteran served on active duty from November 1967 to February 1968 and from February 1968 to June 1972.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from determinations by the Department of Veterans Affairs (VA) Tennessee Valley Healthcare System (TVHCS).  A notice of disagreement was received in October 2010, a statement of the case was issued in February 2011, and a substantive appeal was received in March 2011.  In June 2013, the Board sought a advisory medical opinion from the Veterans Health Administration (VHA); the VHA advisory medical opinion was received in August 2013.

The Veteran presented testimony before the Board in August 2011 before a Veterans Law Judge who is no longer employed by the Board.  A transcript of the hearing has been associated with the record.  In March 2013, the Veteran was afforded the opportunity for a new hearing.  He was notified that if he did not respond within 30 days it would be assumed he did not want a new hearing.  The Veteran did not respond.  As such, there are no outstanding hearing requests of record.


FINDINGS OF FACT

1. The Veteran received private inpatient medical care from July 23, 2010 to July 26, 2010 for severe abdominal pain diagnosed as acute cholecystitis. 

2.  VA has authorized payment for emergency treatment on July 23, 2010.  

3.  The Veteran is ineligible for reimbursement under 38 U.S.C.A. § 1728.

4.  It is not shown that the medical services that the Veteran received from July 24, 2010 to July 26, 2010, were of such nature that delay would have been hazardous to his life or health, nor were they of such nature that he could not have been safely transferred to a VA or other Federal facility.


CONCLUSION OF LAW

The criteria for payment or reimbursement of unauthorized medical expenses incurred during a hospitalization at Hendersonville Medical Center from July 24, 2010 to July 26, 2010, have not been met.  38 U.S.C.A. §§ 1725, 1728, 5107 (West 2002); 38 C.F.R. §§ 17.1000-17.1002 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

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), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. 

Because the record in this case shows that undisputed facts demonstrate that the Veteran's claim for reimbursement of payment of unauthorized medical expenses is barred by applicable statutory and regulatory provisions, the VCAA does not apply to this appeal.  See Manning v. Principi, 16 Vet. App. 534, 542-543 (2002); see also VAOPGCPREC 5-2004.  Nonetheless, the Veteran was provided with an undated duty-to-assist letter, presumably issued prior to the adjudication of the claim.  The letter specifically notified the Veteran that he needed to show evidence that he had no other health coverage in order to substantiate the claim.

Factual Background

Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal.  The Board has reviewed not only the Veteran's physical claims file, but also his file on Virtual VA, to ensure a complete review of the available evidence.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim.

The Veteran presented to the Hendersonville Medical Center emergency department on July 23, 2010 with severe abdominal pain (8 on a scale of 10) and was diagnosed with acute cholecystitis.  (He has testified that he felt he was in "horrendous" pain, thought he was having a heart attack, and had trouble breathing.)  Abdominal sonogram showed extensive hypoechoic material throughout the gallbladder which could be sludge or possibly hemorrhage, there was mild diffuse gallbladder wall thickening, no definite acute echogenic attenuating gallstones, and clinical correlation for acute cholecystitis was recommended.  Surgical consultation was obtained and the Veteran was accepted for further inpatient evaluation and treatment.  It was noted that "a serious condition" is a probable cause for the findings.  The following day, on July 24, 2010 the Veteran underwent laparoscopic cholecystectomy with conversion to laparotomy to evaluate ducts and cholangiogram and intraoperative cholangiogram.  The operative report shows that, after a time during the laparoscopic surgery, the surgeon did not feel that he could continue safely toward the cystic duct with the cystic duct that was visible still being gangrenous and converted to an open procedure.  The postoperative diagnosis was gangrenous cholecystitis with cholelithiasis.  The Veteran did well postoperatively and was discharged on July 26, 2010.  

In his October 2010 notice of disagreement, the Veteran claims that he was told by the surgeon that his condition was life threatening because his gallbladder was gangrenous and fluid was leaking internally.  The Veteran has testified that Hendersonville Medical Center is less than 10 minutes from his home and the nearest VA medical center is 30 to 35 minutes away.  

In November 2010, VA approved the payment of medical expenses incurred on July 23, 2010, finding that the Veteran had stabilized and could have been transferred to a VA facility for the cholecystecomy which was done on July 24, 2010.  Thus, VA denied reimbursement from that point forward.  

In a January 2011 letter, the Hendersonville Medical Center Emergency Department attending physician stated that, as the Veteran's clinical stability was in question at the time of his July 23, 2010 treatment, it was felt to be in the Veteran's best interest to be admitted to Hendersonville Medical Center versus transfer to another facility.  

In February 2011, VA reconsidered the matter and upheld the original decision denying reimbursement from the point when the Veteran's condition had stabilized.  

As the November 2010 decision and February 2011 reconsideration were signed by administrative personnel who are not identified as medical doctors, in June 2013 the Board sought a VHA medical advisory opinion.  

In August 2013, the Assistant Chief of Surgery, Ralph H. Johnson VA Medical Center, and Assistant Professor of Surgery, Medical University of South Carolina, thoroughly reviewed the record and opined that the Veteran's July 2010 hospitalization does not come close to meeting the standard of being an emergency case.  The VHA medical expert explained that (1) the surgeon who cared for the Veteran did not come to the hospital to examine the Veteran when he was admitted and gave fairly routine orders over the phone instead (he examined the Veteran and reviewed his chart the next morning, hours after admission), (2) the Veteran's serial vital signs over a several hour period in the emergency room show that, at no time, was he unstable in any way, (3) the Veteran walked to the examination room and was transported by a wheelchair (not a stretcher) throughout the evaluation, (4) the Veteran was talking and was able to consume voluntarily the contrast for his CAT scan, and (5) the idea that his care would have been compromised by transfer to another facility twenty or thirty minutes away is ludicrous considering that the Veteran's operative procedure did not start until approximately 16 hours after he presented to the emergency room.  The fact that the operative procedure did not start until 1100 the day after admission implies that either another case was done that morning before the Veteran's or the operating room took a very leisurely approach to doing the case.  The medical expert further explained that the Veteran's case would be classified as "urgent," meaning that surgery needed to be done in a timely manner and within 24 hours.  The medical expert noted that Hendersonville Medical Center handled the Veteran's case as "urgent" at every step and nothing was done emergently.  The medical expert reviewed the photos showing the Veteran's gangrenous gall bladder and concluded that a prolonged delay would have impacted his outcome; however, the Veteran was never unstable and there was ample time to transfer him during the overnight period or in the 16 hours he waited for surgery without impairment of his outcome.  

Legal Criteria and Analysis

Emergency medical care received from a non-VA facility requires authorization pursuant to 38 C.F.R. § 17.54.  Smith v. Derwinski, 2 Vet. App. 378 (1992). 

In adjudicating a claim for reimbursement of medical expenses, the Board must make a factual determination as to whether VA gave prior authorization for the non-VA medical care that the Veteran received from July 23, 2010 to July 26, 2010.  38 U.S.C.A. § 1703(a); see also 38 C.F.R. § 17.54.  This is a factual, not a medical determination.  Similes v. Brown, 6 Vet. App. 555 (1994).  

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.

The Veteran has not asserted, nor does the record otherwise indicate, that he received prior VA authorization for the treatment he received at Hendersonville Medical Center from July 23, 2010 to July 26, 2010.  See 38 U.S.C.A. § 1703; 38 C.F.R. § 17.54; Malone v. Gober, 10 Vet. App. 539 (1997). 

The Board has also considered entitlement under 38 U.S.C.A. § 1728 for entitlement to payment or reimbursement of medical expenses incurred at a non-VA facility.  38 U.S.C.A. § 1728(a) provides that VA may pay or reimburse veterans for medical expenses incurred in non-VA facilities where: (1) such care or services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health; (2) such care or services were rendered to a Veteran (A) for an adjudicated service-connected disability, (B) for a non service-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; and (3) Department or other Federal facilities were not feasibly available, and an attempt to use them beforehand would not have been reasonable, sound, wise, or practical.  38 C.F.R. § 17.120.  All three of these statutory requirements must be met before payment may be authorized.  Hayes v. Brown, 6 Vet. App. 66, 68 (1993).

Here, the Veteran is service connected for coronary artery disease, residuals of gunshot wound with fractured tibia and nerve involvement, hypertension, residuals of left knee medial meniscus arthrotomy, and dermatitis with a combined rating of 80 percent.  He is not participating in a rehabilitation program.  The private emergency treatment beginning July 23, 2010, was for acute cholecystitis, a digestive disorder.  Thus, the Veteran is not entitled to reimbursement under 38 U.S.C.A. § 1728.  38 U.S.C.A. § 1728; 38 C.F.R. § 17.120; see also Zimick v. West, 11 Vet. App. 45, 49 (1998).  This leaves a theory of entitlement pursuant to 38 U.S.C.A. § 1725 (The Veterans Millennium Health Care and Benefits Act).  

The applicable regulation for claims under 38 U.S.C.A. § 1725, 38 C.F.R. § 17.1002, provides that all of the listed conditions must be met in order to establish eligibility for payment or reimbursement of unauthorized medical expenses:

(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 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 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. chapte r 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 (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 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, or failure to exhaust appeals of the denial of payment);

(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 the veteran has no contractual or legal recourse against a third party that could reasonably be pursued for the purpose of extinguishing, in whole, the veteran's liability to the provider; and

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

The Board notes that effective January 20, 2012, VA amended its regulations concerning reimbursement for emergency hospital care and medical services provided to eligible veterans for service-connected and nonservice-connected conditions at non-VA facilities.  The purpose of these amendments is to implement provisions from § 402 of the Veterans' Mental Health and Other Care Improvements Act of 2008 (the Act), Public Law No. 110-387, 122 Stat. 4110, which revised 38 U.S.C.A. §§ 1725 and 1728.  This bill makes various changes to veteran's mental health care and also addresses other health care related matters.  In pertinent part, the new law amends 38 U.S.C.A. § 1725 and § 1728 to make the payment or reimbursement by VA of private treatment mandatory as opposed to discretionary, if all of the pertinent criteria outlined above are otherwise satisfied.  Specifically, the word "shall" in both statutes was changed from the word "may."  Additionally, this amendment added a provision, which essentially expands one of the criteria that defines the meaning of "emergency treatment" to include treatment rendered (1) until such time as the veteran can be transferred safely to a VA facility or other Federal facility and such facility is capable of accepting such transfer; or . . . (2) until such time as a Department facility or other Federal facility accepts such transfer if: (A) 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 (B) 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.  Id.

As noted above, the applicable regulation for claims under 38 U.S.C.A. § 1725, 38 C.F.R. § 17.1002, provides that all of the listed conditions must be met in order to establish eligibility for payment or reimbursement of unauthorized medical expenses.  One of the necessary criteria under this section is that the treatment for which payment or reimbursement is sought must be for continued medical care (beyond the initial emergency evaluation/treatment) that is considered an emergency and of such nature that the veteran could not have been safely discharged or transferred to a VA or other Federal facility.  In other words, a medical emergency lasts only until the time that the veteran becomes stabilized. 

As discussed above, the Veteran was initially brought to Hendersonville Medical Center on July 23, 2010, for emergency treatment after experiencing severe abdominal pain, acute cholecystitis was diagnosed and he underwent laparoscopic cholecystectomy with conversion to laparotomy to evaluate ducts and cholangiogram and intraoperative cholangiogram the following day, on July 24, 2010.  In August 2013, the VHA consultant opined that the Veteran's continued medical care received at Hendersonville Medical Center after July 23, 2010, was not of such critical nature that he could not have been transferred to a nearby VA facility.  The VHA examiner explained that the condition was "urgent," (meaning that surgery needed to be done within 24 hours); however, his hospitalization did not come close to meeting the standard of being an emergency case.  The VHA medical expert further explained that the Veteran was never unstable and there was ample time to transfer him during the overnight period or in the 16 hours he waited for surgery without impairment of his outcome.  See August 2013 VHA advisory opinion.  As all requirements under 38 U.S.C.A. § 1725 must be satisfied for payment/reimbursement to be authorized, the Veteran's claim for payment/reimbursement for the private medical services he received at Hendersonville Medical Center from July 24, 2010 to July 26, 2010, under this section is unsubstantiated.  The treatment sought in this instance was not a medical emergency because the situation was not hazardous to life or health, and a VA facility was feasibly available.

The Board finds that a preponderance of the evidence is against the Veteran's claim for reimbursement for medical expenses incurred at Hendersonville Medical Center in Hendersonville, Tennessee, from July 24, 2010 to July 26, 2010.  As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply.  See 38 U.S.C.A. § 5107(b).


ORDER

The appeal is denied.



____________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs