Citation Nr: 1339014 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 13-17 877 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Bay Pines, Florida THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred in connection with hospitalization from February 22-27, 2013, at Fawcett Memorial Hospital. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from May 1951 to March 1971. He appealed to the Board of Veterans' Appeals (Board/BVA) from a March 2013 decision by the Department of Veterans Affairs Medical Center (VAMC) and Healthcare System in Bay Pines, Florida. In June 2013, he requested a videoconference hearing before a Veterans Law Judge of the Board. Also, in an October 2013 Informal Hearing Presentation, his representative reiterated this hearing request. Since, however, the Board is granting the claim, there is no need to schedule this requested hearing because the unauthorized medical expenses in question will be paid in full. An additional issue of entitlement to a rating higher than 60 percent for service-connected arteriosclerotic heart disease, status-post four vessel bypass surgery, has been raised by the record but has not been initially adjudicated by the local VA regional office (RO) as the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not presently have jurisdiction to consider this additional claim, therefore is referring it to the RO for appropriate development and consideration. Please also note the Board has advanced this appeal on the docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran has a total disability rating based on individual unemployability due to service-connected disability (TDIU), which is tantamount to a 100 percent disability rating. 2. He received emergency treatment at Fawcett Memorial Hospital from February 18-27, 2013. 3. Fawcett Memorial Hospital already received reimbursement from VA for treatment provided the Veteran from February 18-21, 2013, so partial payment. 4. Neither the Veteran nor Fawcett Memorial Hospital obtained prior authorization from VA for payment or reimbursement of the cost of treatment provided the Veteran subsequently - from February 22-27, 2013. 5. His entire treatment at Fawcett Memorial Hospital, however, was for a continuing medical emergency - including for increasing shortness of breath and atrial fibrillation; he also was treated for pneumonia. 6. A prudent layperson would have believed the symptoms he experienced both prior to and during the hospitalization were continually emergent in nature. 7. A VA facility was not feasibly available at any point during his hospitalization at Fawcett Memorial Hospital, and an attempt to contact VA beforehand would not have been considered reasonable by a prudent layperson. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria are met for payment or reimbursement of the remaining unauthorized medical expenses incurred at Fawcett Memorial Hospital from February 22-27, 2013. 38 U.S.C.A. §§ 1703, 1725, 1728 (West 2002); 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120, 17.130, 17.1002 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits upon receipt of a complete or substantially complete application. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). This particular claim at issue, however, is governed by the provisions of Chapter 17 of Title 38 of the United States Code. There is caselaw to the effect that the VCAA and its implementing regulations resultantly do not apply. See Barger v. Principi, 16 Vet. App. 132, 138 (2002). In Beverly v. Nicholson, 19 Vet. App. 394, 403-04 (2005), however, although not explicitly so finding, the United States Court of Appeals for Veterans Claims (Court/CAVC) appeared to assume that the VCAA applies even to a Chapter 17 claim (but then held that the failure to comply with the VCAA's notice requirements in that case was non-prejudicial, so harmless error). Regardless, seeing as though the Board is fully granting the Veteran's claim for payment or reimbursement of the unauthorized medical expenses at issue, the question of whether the VCAA applies to his claim is ultimately inconsequential, so not outcome determinative of his appeal irrespective of whether it actually does or does not. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Governing Statutes, Regulations and Case Law Treatment records in the claims file reflect that the Veteran was hospitalized at Fawcett Memorial Hospital from February 18-27, 2013. And it is payment of these consequent medical expenses that is at issue. He is requesting full rather than just partial payment of these medical expenses When VA facilities are not capable of furnishing the care or services required, VA may contract with non-Department facilities in order to furnish certain care, including hospital care or medical services for the treatment of medical emergencies that pose a serious threat to the life or health of a Veteran receiving medical services in a Department facility until such time following the furnishing of care in the non-Department facility as the Veteran can be safely transferred to a Department facility. 38 U.S.C.A § 1703(a)(3); 38 C.F.R. § 17.52. The admission of a Veteran to a non-VA hospital at the expense of VA must be authorized in advance. 38 C.F.R. § 17.54. 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. Additionally, VA may reimburse Veterans for unauthorized medical expenses incurred in non-VA facilities where: (a) 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; (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. Chapter 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) 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) 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. 38 U.S.C.A. § 1728(a); 38 C.F.R. § 17.120. All three statutory requirements must be met before the reimbursement may be authorized. Zimick v. West, 11 Vet. App. 45 (1998); Hayes v. Brown, 6 Vet. App. 66 (1993). Emergency treatment is defined as medical care or services that are furnished 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. 38 U.S.C.A. § 1725(f)(1); 1728(c)(giving 'emergency treatment' the same meaning as provided in 1725(f)(1)); 38 C.F.R. § 17.120, 17.1002; see also Swinney v. Shinseki, 23 Vet. App. 257, 263 (2009). The standard for emergency treatment 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 possess 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. 38 C.F.R. § 17.1002(b). 'Emergency treatment' includes treatment rendered 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 . . . 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. 38 U.S.C.A. § 1725(f)(1)(C). With regards to the issue of feasible availability, the admission of any patient to a private or public hospital at VA expense will only be authorized if a VAMC or other federal facility to which the patient would otherwise be eligible for admission is not feasibly available. 38 C.F.R. § 17.53. A VA facility may be considered as not feasibly available when the urgency of the applicant's medical condition, the relative distance of the travel involved, or the nature of the treatment required makes it necessary or economically advisable to use public or private facilities. Id. When non-VA care is authorized in such circumstances, the authorization will be continued after admission only for the period of time required to stabilize or improve the patient's condition to the extent that further care is no longer required to satisfy the purpose for which it was initiated. Id. 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. 38 C.F.R. § 17.130. Analysis The evidence reflects that the Veteran arrived at the emergency department of Fawcett Memorial Hospital on February 18, 2013, presenting with complaints of increasing shortness of breath and cold-like symptoms. He was coughing green and yellow sputum. At the emergency room, he was found to have shortness of breath as well as atrial fibrillation. A hospital entry dated February 19, 2013, so the following day, indicates the atrial fibrillation was of new onset. He was treated with intravenous Carzidem for rate control. He also was started on intravenous heparin. One medication was adjusted, and some medications were continued as usual. An echocardiogram was necessary to reassess ventricular function and to determine the appropriate course of treatment. Also noted on February 19, 2013, was that an X-ray of his chest on admission showed significant bilateral congestion that appeared to be superimposed pneumonia. There was an assessment, in pertinent part, of bilateral pneumonia, dyspnea, new-onset atrial fibrillation, acute asthmatic bronchitis, and congestive heart failure with congestive heart failure exacerbation. There are no progress notes dated between February 19-25, 2013. According to the Veteran, he told Fawcett Memorial Hospital to contact VA as soon as he was stable. Records reflect that Fawcett Memorial Hospital duly contacted VA on February 21, 2013. According to VA records, the Veteran was transferred from emergency care to ongoing care. It is unclear, however, how Fawcett Memorial Hospital actually categorized the care. In any event, on February 21, 22, and 26, 2013, a VA Bay Pines Healthcare System official contacted personnel at Fawcett Memorial Hospital regarding the Veteran wanting to transfer to VA for further care. There was no response from Fawcett Memorial Hospital until February 26, 2013, when the Fawcett Memorial Hospital official advised the VA Bay Pines Healthcare System official that the Veteran did not wish to transfer to VA. The Veteran contends that he simply stated that it did not make sense to transfer to VA, as he was going to be discharged the following day. He indicates that he did not refuse to be transferred and implied that he was willing to transfer. He simply made a comment regarding the lack of logic in transferring him to a different facility the day before his discharge. The available records from Fawcett Memorial Hospital dated February 25, 2013 indicate the Veteran developed bibasilar atelectasis and also had atrial fibrillation and significant lower extremity edema. Cardioversion was discussed with him in detail. He had completed his seventh day of intravenous antibiotics, and there was a notation that the international normalized ratio would have to be monitored closely. As to other conditions, he indicated that he wanted to have them treated on an outpatient basis once his condition improved. Another notation reflected that he was being followed for renal failure. Cardiology voiced concerns for the possible need for a hematology consultation. The assessment that day was of bilateral pneumonia, atrial fibrillation with rapid ventricular response, diabetes mellitus, improving acute renal failure, and probable obstructive sleep apnea. Other notes indicated he was 82 and morbidly obese. On February 26, 2013, the Veteran underwent a transesophageal echocardiogram due to arterial fibrillation and mitral valve disease. So the determinative issue is whether his additional care from February 22-27, 2013 constituted emergency care. The record reflects that he has had a TDIU effectively since December 29, 2004, so he had it during the treatment in dispute. As he has a total disability rating that is reasonably certain to continue throughout his lifetime, he is eligible for reimbursement of unauthorized medical expenses incurred because the condition specifically treated is irrelevant, that is, does not have to be for a particular service-connected disability, rather, can be for any ailment whatsoever, provided also the other criteria are met. 38 U.S.C.A. § 1728(a)(2); 38 C.F.R. § 4.15. With respect to the second criterion, a medical emergency, the Court has held that in evaluating whether a prudent layperson would consider the treatment emergent, both medical and lay evidence may be considered. See Swinney v. Shinseki, 23 Vet. App. 257, 265. The Court has further explained that a medical determination made in hindsight, so after the fact, is not dispositive of whether the claimant is eligible for reimbursement under § 1725. Id. VA already has conceded there was emergent treatment from February 18-21, 2013, by agreeing to at least pay those initial expenses. Even after that date, however, the Veteran was receiving intravenous antibiotics and suffering from atrial fibrillation as well as bibasilar atelectasis and acute renal failure in addition to other conditions. At some point, a hematology consult consequently was considered. As apparent from the record, there is no suggestion that transfer was even considered by the staff at Fawcett Memorial Hospital until February 26, 2013, when the Veteran was approached concerning that possibility, thus, ultimately not until the day immediately preceding his eventual discharge. At no time did the medical staff at Fawcett Memorial Hospital indicate the Veteran's condition was nonemergent. In any event, the Board finds that from his lay perspective, a prudent layperson at the time the event was happening would have reasonably believed that a medical emergency continued, so had not resolved. Indeed, the state of being tethered to tubes of antibiotics and receiving diagnoses such as he did would lead the average person, particularly one of his advanced age and health profile, to believe that emergency treatment was being delivered since still necessary. Accordingly, the Board finds that services rendered from February 22-27, 2013 were emergent. See 38 U.S.C.A. § 1728(a)(1) (West 2002); 38 C.F.R. § 17.120(b). With respect to the corollary issue of whether VA facilities were feasibly available, the evidence does not show the Veteran was advised of the feasibility of transfer until February 26, 2013, so, again, not until the day before his eventual discharge from Fawcett Memorial Hospital. He apparently made a comment indicating that transfer to a VA facility just one day before his anticipated discharge from Fawcett Memorial Hospital made no logistical sense, but he did not outright refuse to transfer and apparently would have had this been arranged. The Board therefore finds that a VA facility was not feasibly available for his continuing emergency needs until, at the very earliest, February 26, 2013, because it was only then that officials at Fawcett Memorial Hospital began contemplating a transfer to a VA facility. It is unclear whether such consideration had taken place previously, but given that a transfer did not occur earlier one must resolve this reasonable doubt in the Veteran's favor and assume that it did not. 38 C.F.R. §§ 3.102, 4.3. Because emergency treatment had been occurring at least until February 26, 2013, resolving reasonable doubt in the Veteran's favor additionally means that emergent treatment was continuing to take place until his eventual discharge from Fawcett Memorial Hospital just one day later, on February 27, 2013. For these reasons and bases, the Board finds that the requirements are met for payment or reimbursement of the unauthorized medical treatment expenses he additionally incurred at Fawcett Memorial Hospital from February 22-27, 2013. 38 U.S.C.A. § 1728. ORDER The claim of entitlement to payment or reimbursement of the remaining unauthorized private medical expenses incurred at Fawcett Memorial Hospital from February 22-27, 2013 is granted. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs