Citation Nr: 1339494 Decision Date: 12/02/13 Archive Date: 12/13/13 DOCKET NO. 11-29 730 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Seattle, Washington THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred as a result of treatment provided at Peace Health St. Joseph Hospital from August 26, 2010 to September 2, 2010. REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1965 to May 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 administrative decision of the Department of Veterans Affairs Medical Center (VAMC) in Seattle, Washington, which is the agency of original jurisdiction (AOJ). In March 2012, the Veteran testified at a Board hearing held before the undersigned Veterans Law Judge in Seattle, Washington. A copy of the transcript is of record. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system and the "Virtual Benefits Management System (VBMS)" to ensure a total review of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran has been rated totally disabled by VA for posttraumatic stress disorder (PTSD) with organic mental disorder, effective April 19, 1993. 2. The Veteran presented to the emergency room at Peace Health St. Joseph Hospital on August 15, 2010 for injuries sustained when impacted by a deer while riding a scooter. He was discharged on August 25, 2010. 3. From August 26, 2010 to September 2, 2010, the Veteran received inpatient rehabilitation treatment, which was not rendered pursuant to a medical emergency, at Peace Health St. Joseph Hospital. 4. The Veteran has coverage under Medicare Part B insurance. CONCLUSION OF LAW The criteria for payment or reimbursement of unauthorized medical expenses incurred as a result of treatment provided at Peace Health St. Joseph Hospital from August 26, 2010 to September 2, 2010 have not been met. 38 U.S.C.A. §§ 1703, 1725, 1728 (West Supp. 2013); 38 C.F.R. §§ 17.52, 17.120, 17.123-17.132 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). There is no indication in these provisions that Congress intended to revise the specific claim provisions of 38 U.S.C. Chapter 17. 38 C.F.R. §§ 17.123-17.132; Barger v. Principi, 16 Vet. App. 132 (2002). The provisions of Chapter 17 of 38 U.S.C.A., and 38 C.F.R. Part 17, contain their own notice requirements. Regulations at 38 C.F.R. § 17.120-33 discuss the adjudication of claims for reimbursement of unauthorized medical expenses. A veteran 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." 38 C.F.R. § 17.124. When a claim for payment or reimbursement of unauthorized medical expenses is disallowed, VA is required to notify the Veteran of its reasons and bases for denial, his or her appellate rights, and to furnish all other notifications or statements required by Part 17 of Chapter 38. 38 C.F.R. § 17.132. In this case, a May 2011 notice letter advised the Veteran of the criteria necessary to substantiate his claim, and the VAMC's February 2011 administrative decision on appeal notified him of his appellate rights. In July 2011, the RO further explained to the Veteran the bases for the denial of this claim in a statement of the case (SOC) and afforded him the opportunity to present information and evidence in support of the claim. In March 2012, the Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. During that hearing the Veteran's representative and the Veterans Law Judge explained the issue and asked the Veteran questions to ascertain the nature of the private rehabilitation treatment. The hearing was also focused on the elements necessary to substantiate his claim. Neither the Veteran nor his representative has suggested any deficiency in the conduct of that hearing; and all pertinent evidence that might substantiate the claim was identified by the Veteran and attempted to be obtained. Therefore, the Board finds that the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). See Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Board finds no further assistance to the Veteran with the development of evidence or additional notice is required. Pertinent Laws and Regulations When VA facilities are not capable of furnishing economical hospital care or medical services because of geographic inaccessibility or are not capable of furnishing care or services required, VA may contract with non-VA facilities in order to furnish certain care, including hospital care or medical services for the treatment of medical emergencies which pose a serious threat to the life or health of a veteran receiving medical services in a VA facility until such time following the furnishing of care in the non-VA facility as the veteran can be safely transferred to a VA facility. See 38 U.S.C.A § 1703(a)(3); 38 C.F.R. § 17.52(a)(3). A claim for payment or reimbursement of services not previously authorized may be filed by a veteran who received the services, as in this case. See 38 C.F.R. § 17.123. To the extent allowable, payment or reimbursement of the expenses of emergency treatment, not previously authorized, in a private or public (or Federal) hospital not operated by VA, or of any emergency treatment not previously authorized including transportation (except prosthetic appliances, similar devices, and repairs) will be paid on the basis of a claim timely filed, under the following circumstances: (a) For veterans with service-connected disabilities. Emergency treatment, not previously authorized was rendered to a veteran in need of such emergency treatment . . . (3) For any disability of a veteran who has a total disability permanent in nature resulting from a service-connected disability; and (b) In a medical emergency. Emergency treatment not previously authorized was rendered in a medical emergency of such 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 is met by 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.; 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. See 38 U.S.C.A. § 1728(a) (1)-(3); 38 C.F.R. § 17.120. All three of these statutory requirements must be met before payment may be authorized. Zimick v. West, 11 Vet. App. 45, 49 (1998). The term "emergency treatment" is defined as medical care or services furnished in the judgment of VA: (A) when VA or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable; and (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 VA facility or other Federal facility and such facility is capable of accepting such transfer; or (ii) such time as a VA facility or other Federal facility accepts such transfer if-- (I) at the time the veteran could have been transferred safely to a VA facility or other Federal facility, no VA facility or other Federal facility agreed to accept such transfer; and (II) the non-VA 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(f)(1), 1728(c); see Swinney v. Shinseki, 23 Vet. App. 257, 263 (2009). Analysis Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. The Veteran presented to the emergency room at Peace Health St. Joseph Hospital on August 15, 2010 for injuries sustained from a motorcycle accident and was discharged on August 25, 2010. The issue, for which the Veteran is seeking, is payment or reimbursement of unauthorized medical expenses incurred as a result of inpatient rehabilitation treatment provided at this facility from August 26, 2010 to September 2, 2010. Review of the record indicates the Veteran is service-connected for PTSD with organic mental disorder at 100 percent disabling, effective April 19, 1993. Thus, the first requirement is satisfied because the Veteran has a total disability permanent in nature resulting from a service-connected disability. See 38 U.S.C.A. § 1728(a)(1); 38 C.F.R. § 17.120(a)(3). Next, the Board finds that, from August 26, 2010 to September 2, 2010, the Veteran received inpatient rehabilitation treatment which was not rendered pursuant to a medical emergency at Peace Health St. Joseph Hospital. Thus, the second requirement has not been met. See 38 U.S.C.A. § 1728(a)(2); 38 C.F.R. § 17.120(b). Review of the evidentiary record shows that on August 15, 2010, the Veteran presented to the emergency room at Peace Health St. Joseph Hospital for injuries sustained when impacted by a deer while riding a scooter at approximately 40 miles per hour. He was unconscious and intubated, and there was no request for transfer at the time of arrival. The Veteran was treated until August 25, 2010, at which time he was discharged and admitted for inpatient rehabilitation treatment at the same facility. At the time of his admission for rehabilitation treatment, objective findings revealed he was alert, pleasant, cooperative, and oriented to person, place, month, year, and situation. Review of the Seattle VAMC records, documenting correspondence with Peace Health St. Joseph Hospital leading up to the Veteran's discharge on August 25, 2010, shows that surgeons were not requesting a transfer because the Veteran will likely discharge home in the next two days. On August 24th, the Veteran was evaluated for a possible transfer to inpatient rehabilitation under his Medicare benefit and he reportedly was willing to do whatever they want, thus he will stay at the private facility and use his Medicare. Whether a patient is stable is, arguably, a medical determination. Here, the record includes a March 2011 determination, made by a representative from the Seattle VAMC, that the Veteran's period of inpatient rehabilitation treatment from August 25, 2010 to September 2, 2010 as "not emergent care." There is no medical evidence countering this medical conclusion. As a result, VA authorized payment of his emergency treatment from August 15, 2010 to August 25, 2010, which ceased at the time of his transfer to non-emergent inpatient rehabilitation treatment. The medical evidence of record regarding the August 25th transfer does not indicate that a VA facility was not feasibly available for the Veteran's rehabilitation treatment and it is reasonable that the Veteran could have attempted to use VA facilities before seeking private inpatient rehabilitation pursuant to his Medicare benefits. The Board acknowledges the contentions and assertions made during the course of this appeal. Particularly, in the notice of disagreement, via a VA Form 21-4138, he reported that he was taken to the private facility unconscious, VA denied the transfer on August 17th because it did not have a trauma center, and while waiting for the psychiatric evaluation on August 24th he was unaware of the papers he was signing. In the October 2011 substantive appeal, via a VA Form 9, he reported being told by VA and the private facility that a transfer was denied because VA did not have the facilities to treat brain injury rehabilitation. He also reiterated that he was in a semiconscious state and heavily drugged, so had no say in the VA's and private facility's actions. Most recently, the Veteran testified at the March 2012 Board hearing, that VA previously authorized for the Veteran to remain at Peace Health St. Joseph Hospital for rehabilitation treatment, which was part of the emergency surgical treatment, but then VA declined to pay for such rehabilitation rendered from August 26, 2010 to September 2, 2010. The representative also asserted that Social Security has never been involved with this issue, and the Veteran reiterated that he was heavily drugged during any correspondence between VA and the private facility. There is no indication, however, in the detailed notes of communications between the VAMC and St. Joseph that VA at any time authorized payment of rehabilitation. The Board is sympathetic to the Veteran's situation and understands the severity of the injuries sustained and emergency treatment rendered at Peace Health St. Joseph Hospital. As discussed above, the evidence of record verifies the Veteran was unconscious when initially admitted and there was no transfer request at the time of his arrival to St. Joseph Hospital on August 15, 2010, and there were even notations on August 20 that he remained confused. VA has paid for the treatment during this time period, as it arguably was an emergency and the Veteran was not stable enough to be transferred to a VA facility. Nevertheless, at the time of his discharge from emergency treatment on August 25, 2010, he was alert, oriented, and no longer required emergency treatment when admitted for inpatient rehabilitation treatment, which was to be covered by his Medicare. There are no indications in the records that he was "heavily drugged" or in any way unable to participate in decisions regarding his care around the time of his transfer to rehab. In fact, the evidence indicates the opposite, as noted above. The intake forms for rehabilitation reflect a history taken from the Veteran, including that he was having some difficulty with memory, but there are no indications that he was in any way drugged, confused, etc. Thus, the Board finds that the second element of the criteria for payment or reimbursement of his medical expenses incurred as a result of the inpatient rehabilitation treatment provided at Peace Health St. Joseph Hospital from August 26, 2010 to September 2, 2010 have not been met under 38 U.S.C.A. § 1728. See 38 C.F.R. § 17.120. VA has paid for the private treatment incurred during the emergency period following his accident; unfortunately, once he was stable and the emergency ceased, VA had no obligation to pay for continuing care, including rehabilitation. The Board now considers whether the criteria has been met for reimbursement for emergency services for nonservice-connected condition in a non-VA facility under 38 U.S.C.A. § 1725. A veteran is only considered to be "personally liable" for treatment if he/she has no entitlement to care or services under a health-plan contract. See 38 U.S.C.A. § 1725(b)(3)(B). Pertinent to this claim on appeal, a "health-plan contract" is defined to include an insurance program described in section 1811 of the Social Security Act (42 U.S.C.A. § 1395c refers to Medicare Part A) or established by section 1831 of that Act (42 U.S.C.A. § 1395j refers to Medicare Part B). See 38 U.S.C.A. § 1725(f)(2)(B). Thus, the law and regulations specifically exclude payment under 38 U.S.C.A. § 1725 if a veteran has coverage under either Medicare Part A or Medicare Part B. Review of the record demonstrates the Veteran has coverage under Medicare Part B, which thus bars the Veteran from receiving payment or reimbursement of his medical expenses incurred as a result of the inpatient rehabilitation treatment provided at Peace Health St. Joseph Hospital from August 26, 2010 to September 2, 2010. As a result, the criteria under 38 U.S.C.A. § 1725 have not been met. For these reasons and bases discussed above, the Board finds that the evidence is against the claim for payment or reimbursement of unauthorized medical expenses incurred as a result of treatment provided at Peace Health St. Joseph Hospital from August 26, 2010 to September 2, 2010. As a result, this claim must be denied and the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Payment or reimbursement of unauthorized medical expenses incurred as a result of treatment provided at Peace Health St. Joseph Hospital from August 26, 2010 to September 2, 2010 is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs