Citation Nr: 1338472 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 11-05 584 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to payment or reimbursement for medical services provided by Lake Health on March 26, 2010. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from May 1995 to May 1999, and from June 2004 to March 2005. This case is before the Board of Veterans' Appeals (Board) on appeal from a decision by the Department of Veterans Affairs (VA) Louis Stokes Medical Center in Brecksville, Ohio. In October 2011, the Veteran testified at a Travel Board hearing at the Cleveland, Ohio Regional Office (RO). FINDINGS OF FACT 1. The services provided by provided by Lake Health on March 26, 2010, were provided in a medical facility held out as providing emergent care. 2. The condition treated by Lake Health on March 26, 2010, a right index finger laceration from a circular saw, was for a condition whose symptoms were 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. 3. 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. 4. The claim for payment or reimbursement for any medical care beyond the initial emergency evaluation and treatment was 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, particularly since the service was provided on the same day as admission to the hospital. 5. 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. 6. The Veteran is financially liable to the provider of emergency treatment for that treatment. 7. The record does not establish that the Veteran has coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the emergency treatment. 8. The condition for which the emergency treatment was furnished did not involve a third party with regard to liability. 9. The Veteran is not eligible for reimbursement under 38 U.S.C.A. § 1728 for the emergency treatment provided. CONCLUSION OF LAW The criteria for payment or reimbursement for medical services provided by Lake Health on March 26, 2010, pursuant to the Veterans Millennium Health Care and Benefits Act have been met. 38 U.S.C.A. §§ 1725, 1728, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 17.120, 17.121, 17.1000, 17.1001, 17.1002 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012). In the instant case, the Veteran's claim is being granted. As such, any deficiencies with regard to the VCAA are harmless and nonprejudicial. A review of the documentary record and the Veteran's hearing testimony reflects that the Veteran was admitted to Lake Health on March 26, 2010, for a laceration of his right index finger that he cut with a circular saw. The Veteran testified that he could not stop the bleeding. The medical record shows that the laceration required 6 stitches. The Veteran was discharged after his finger was treated. The Board notes that pursuant to the Veterans Millennium Health Care and Benefits Act (Millennium Bill), VA denied payment for the medical services because (1) the request for payment was not timely as it was later than 90 days after the treatment; and (2) the Veteran had other health care coverage. In support of his claim, the Veteran indicated that VA was originally billed on April 6, 2010, then again on May 12, 2010, and then a third time on June 27, 2010. The Board has reviewed the record and the Veteran's testimony and finds that information credible. Thus, the request for payment was timely made. In addition, the Veteran stated that he had no health care coverage when the accident occurred. He was self-employed and lacerated his finger in the course of his job. He reported that he was solely responsible for this medical bill as he did not have health care coverage until after the incident. The Board also finds this testimony credible. 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." 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 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. To be eligible for payment or reimbursement for emergency services for non-service connected conditions in non-VA facilities, the 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; (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) 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); (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; (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 (i) The veteran is not eligible for reimbursement under 38 U.S.C.A. § 1728 for the emergency treatment provided. See 38 C.F.R. § 17.1002. This regulation was revised, effective January 20, 2012, to remove the requirement of 38 C.F.R. § 17.1002(d). See 76 Fed. Reg. 79 ,067 - 79,072 (Dec. 21, 2011). Moreover, there was substantial revision to 38 C.F.R.§ 17.1005 which redefined the time period under which a medical "emergency" warranting reimbursement would end, as well as those limited circumstances under which non-emergent treatment would still be retroactively authorized (i.e., where documented that VA treatment was not otherwise possible). The Veteran seeks payment or reimbursement for emergency services rendered for a nonservice-connected condition in a non-VA facility, specifically, for emergency services provided by Lake Health on March 26, 2010, under 38 U.S.C.A. § 1725 and 38 C.F.R. §§ 17.1000-1002. The Board observes that Lake Health is a medical facility which provides emergency services which satisfies section (a), above. The condition treated by Lake Health on March 26, 2010, a right index finger laceration form a circular saw, was for a condition whose symptoms were 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. The Veteran credibly indicated that his finger would not cease bleeding, he could not control the bleeding, and he in fact required six sutures. Thus, criterion (b) is met. 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. The nearest VA facility was six times the distance in time than the private facility. Therefore, criterion (c) is met. Further, criterion (d) is met. The Veteran was admitted, treated, and discharged. Thus, there was no need for an earlier discharge or transfer to a VA facility the service provided was performed on the same day as hospital admission. 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. Therefore, the fifth criterion (e) is also met. There RO denied this claim on the basis that the Veteran was not financially liable to the provider of emergency treatment for that treatment because the Veteran had coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the emergency treatment. However, the Board finds that this is not the case. The Veteran was self-employed with no health insurance or other coverage when the accident occurred. As such, criteria (f) and (g), are also satisfied. With regard to criterion (h), although the Veteran suffered a work-related injury, the intent of this criterion is that the Veteran exhaust without success all claims and remedies reasonably available to the veteran or provider against a third party for payment of such treatment. There was no third party involvement here for liability to attach. Finally, the Board finds that the Veteran is not eligible for reimbursement under 38 U.S.C.A. § 1728 for the emergency treatment provided. The Board therefore concludes that the Veteran meets the criteria for entitlement to payment or reimbursement for medical services provided by Lake Health on March 26, 2010, pursuant to the Millennium Bill Act. ORDER Payment or reimbursement for medical services Lake Health on March 26, 2010, pursuant to the Veterans Millennium Health Care and Benefits Act is granted. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs