Citation Nr: 1338011 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 10-18 263 ) DATE ) ) On appeal from the Department of Veterans Affairs Nebraska-Western Iowa Health Care System in Omaha, Nebraska THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred in connection with hospitalization on December 14, 2009 at BryanLGH Medical Center (BMC). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from August 1976 to December 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 decision of the Department of Veterans Affairs (VA) Nebraska-Western Iowa Health Care System in Omaha, Nebraska, by which reimbursement of unauthorized medical expenses for medical treatment provided to the Veteran by BMC on December 14, 2009 was denied. In the May 2010 substantive appeal, the Veteran requested a hearing before a member of the Board (now called a Veterans Law Judge) to be held at the local VA office. In a subsequent letter sent to the Veteran in November 2010, the RO informed the Veteran of a Board hearing scheduled in January 2011. The Veteran failed to appear. Accordingly, the hearing request is considered to have been withdrawn. See 38 C.F.R. § 20.702 (2013). In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed the file on the Virtual VA system to ensure a complete assessment of the evidence. FINDINGS OF FACT 1. On December 14, 2009, the Veteran was admitted to the BMC (a public hospital) emergency department pursuant to suicidal statements. 2. At the time of the private medical treatment at BMC, the Veteran was service connected for a right shoulder disability, a mechanical low back strain, and hemorrhoids; emergency medical services (treatment) rendered at BMC on December 14, 2009 was for a nonservice-connected disorder. 3. The medical care the Veteran received on December 14, 2009 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 on December 14, 2009, there were no VA medical facilities feasibly available and an attempt to use them beforehand would not have been reasonable. 5. At the time of treatment at BMC, 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 is financially liable to the provider of the treatment (BMC) for the treatment rendered on December 14, 2009. 7. The Veteran's private medical insurance expired on June 30, 2009 and he had no other 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 Veteran's favor, the criteria for payment or reimbursement of the unauthorized medical expenses incurred on December 14, 2009 at BMC 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 (West 2002 & Supp. 2012). 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 (2013) 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 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. Application of either statute is generally dependent on whether the veteran has an adjudicated service-connected disability. In this case, at the time of the private medical treatment at BMC on December 14, 2009, the Veteran was service connected for a right shoulder disability, a mechanical low back strain, and hemorrhoids. As such, emergency medical services (treatment) rendered at BMC on December 14, 2009 were for a nonservice-connected disorder and 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 on December 14, 2009 qualifies for reimbursement. The Veteran was seen in the emergency department of BMC; 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 morning of admission to BMC, the Veteran reported that he lost his job. Upon returning home, he called his primary care physician at a VA clinic and told the VA nurse that he had an "intent or serious consideration to suicidal thoughts." See May 2010 Substantive Appeal. He talked to the VA nurse who then asked local police officers to bring the Veteran to the VA Center. En route to the VA Center, the VA nurse informed the Veteran that there was no care available at the VA Center and directed the police officers to take the Veteran to BMC. A preliminary note upon admittance to the BMC emergency department on December 14, 2009 indicated that the Veteran presented via the police department after making a suicidal statement earlier in the day. The note indicated the Veteran's report of losing his job earlier that day. The note indicated that he called his primary care physician's office (at a VA clinic) and stated that he was thinking about killing himself. At the time of the evaluation, the Veteran denied any active suicidal or homicidal thoughts. The report included the Veteran's statement that he only made statements of suicidal thoughts "in order to be seen by a physician more quickly. He feels embarrassed about this episode and does not want to stay..." See December 14, 2009 BMC Treatment Note. Upon comprehensive physical and psychiatric evaluations, the Veteran was diagnosed with major depression. He was discharged on December 14, 2009 (the same day of admission) and was accompanied home by the police. In this case, the complaint of suicidal thoughts that was initially reported by the Veteran on December 14, 2009 is inherently 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. While the preliminary note from December 14, 2009 indicated that the Veteran no longer had suicidal ideations and that he made the statements to receive quicker care from a physician, the Veteran clarified, in the May 2010 substantive appeal, that at the time he made the suicidal comments he did have the intent and seriously considered suicide due to the loss of his job that day. The fact that the Veteran no longer had suicidal thoughts at the time of treatment from BMC does not diminish the initial distress felt by the Veteran, which was significant enough to prompt the Veteran to call his primary care provider at VA for medical and psychiatric assistance. In short, the Board finds that, from the perspective of the Veteran, a prudent layperson at the time the event was happening (i.e., when the Veteran called the VA primary care physician after losing his job) would have reasonably believed that a medical (psychiatric) emergency was taking place. With respect to the question of whether VA facilities were feasibly available, the Veteran contends that an attempt to seek treatment at a VA facility was made; however, en route to the VA Center, the VA nurse informed the Veteran that there was no care available to the Veteran at the VA Center, and instructed the police officers to take him to BMC. There is no evidence of record to the contrary and, in resolving any doubt in favor of the Veteran, the Board finds that VA medical facilities were not feasibly available and an attempt to use them beforehand would not have been reasonable VA treatment reports of record indicate that the Veteran was being treated by a VA physician, including within the 24-month period preceding December 14, 2009 (when the Veteran was admitted at BMC). As such, the Veteran was enrolled in the VA health care system at the time of the December 14, 2009 treatment. 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 on December 14, 2009. 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. The VA Nebraska-Western Iowa Health Care System denied the Veteran's claim on the basis that he had private medical insurance coverage at the time of the private medical treatment; however, the record reflects that the Veteran's private medical insurance expired on June 30, 2009, approximately six months prior to treatment at BMC. 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 (despite the report that the Veteran was fired from his job the morning of December 14, 2009). 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 suicidal ideations and depression were etiologically related to his military service or associated and aggravated by service-connected disabilities. Indeed, at the time of treatment at BMC, the Veteran was service connected for a right shoulder disability, a mechanical low back strain, and hemorrhoids. In fact, the Veteran was denied service connection for depression in an unappealed November 1996 rating decision. Nor is there any indication 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 BMC on December 14, 2009, 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 on December 14, 2009 at BMC is granted. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs