Citation Nr: 1339991 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 08-06 560A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Medical Center (MC) in Tampa, Florida THE ISSUE Entitlement to payment or reimbursement for the cost of private medical expenses incurred from February 9, 2005 to February 10, 2005. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 determination by the VAMC. The Veteran, sitting at the RO, testified at a hearing before the undersigned Veterans Law Judge in May 2009. In October 2009 and March 2010, the Board remanded the appeal for additional development. The issue was listed to include consideration to payment or reimbursement for the cost of private medical expenses incurred from February 7, 2005 to February 10, 2005. A review of the claims folder shows that the VAMC paid for the medical services provided on February 7 and 8, 2005. Accordingly, the issue has been rephrased to reflect this. The VBMS and Virtual VA folders have been reviewed. FINDINGS OF FACT 1. The Veteran incurred medical expenses for private medical treatment at Winter Haven Hospital from February 7, 2005 to February 10, 2005; the VAMC paid for expenses incurred on February 7 and 8, 2005. 2. The medical evidence shows that, while the Veteran was stable for transfer as of February 9, 2005, a VA or other federal facility/provider was not feasibly available. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, the criteria for payment or reimbursement for the cost of private medical expenses incurred from February 9, 2005 to February 10, 2005 are met. 38 U.S.C.A. §§ 1725, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 17.120, 17.121, 17.1000-17.1008 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Given the favorable decision in this claim, a detailed discussion regarding the applicability of VCAA and whether its requirements have been met is not needed. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2013). Factual Background A VA telephone note dated February 7, 2005 indicates that the Veteran called with complaints of rectal bleeding bright red in color. He had noticed spotting over the last 4 to 5 days. He was advised to seek immediate medical attention and to go to the nearest emergency room. The Veteran presented to the emergency room at Winter Haven Hospital on February 7, 2005. Assessment was that of gastrointestinal bleed, and the Veteran was admitted to the progressive care unit. The Veteran was discharged on February 10, 2005 with diagnoses of (1) diverticular bleed; and (2) anemia. A February 10, 2005 note (presumed to have been written by an employee of the private hospital) indicated that she spoke with an individual at the VAMC who stated that the patient was a "mil bill" so would need to be directly called to another individual at the Tampa VAMC. The employee informed the individual that she had spoken with that person on the previous day, that there were no beds available for transfer and that the patient was going to be discharged today or tomorrow. The employee asked her about the bill getting paid and she said that there should not be any problems and the case would be reviewed by their Medical Director when the claim was submitted. In his March 2006 Notice of Disagreement, the Veteran reported that the hospital staff assured him they were in contact with the Tampa VAMC and that he was not moved because there was no available room. Throughout his entire stay, he reported asking about contact with VA and was told that it was still full. In a March 2008 statement, the Veteran reported that, during his hospitalization, he was assured that the hospital was in direct contact with the VAMC and was told that there was no room and that he could not be moved there. He argued that he was not moved after stability because there was no room at the VAMC. In a November 2009 statement, a VA physician responded to the Board's remand. He set forth the facts of the case and stated that VA had paid for the initial emergency visit (February 7) and February 8, but denied payment for February 9-10, 2005 because the reviewing physician felt the Veteran was stable on the 9th and could have been transferred to a VA facility on that day. He was felt to be stable in part because his vital signs were normal, he did not need a blood transfusion and had had no further obvious rectal bleeding. The physician further stated: [He] concur[red] that payment should include 2/7/05-2/8/05 but not 2/9/05 (day of stability) or 2/10/05. There [were] no records in the VA system corroborating claims (excepting the advice on 2/7/05 that he go to nearest emergency center as above) that there were no beds available at the [Tampa VAMC]. A perusal of the bed availability on EMRESOURCE site which [was] used to check VA bed status, [did] not include 2005 but this [was] a moot point as the consideration of bed availability at VA centers for transfer of stable veterans from non-VA medical facilities did not become law until October 8, 2008. In April 2010, the VA physician provided another statement in response to the March 2010 remand by the Board. He again stated that bed availability was not a consideration until the law went into effect in October 2008. He further stated that he found no communication or notification from Winter Haven (as required) except the February 10, 2005 note stating that they planned to discharge the Veteran today or tomorrow. The VA physician stated that the Veteran was stable as of February 9, 2005 and that VA was not responsible for any payment beyond the date of stability. The distance between Winter Haven Hospital and the Tampa VAMC was noted to be 54 miles, mostly by interstate. Analysis The Veteran claims entitlement to payment or reimbursement of costs of medical treatment provided at Winter Haven Hospital from February 7, 2005 to February 10, 2010. As noted, the dates remaining for consideration are limited to the expenses incurred on February 9 and February 10, 2005. While the Veteran was directed to proceed to the nearest emergency room on February 7, 2005, there is no documentation in the file showing that the expenses in question were pre-authorized. When a Veteran receives treatment at a non-VA facility without prior authorization, there are two statutes that allow for claimants to be paid or reimbursed for the medical expenses incurred for that treatment - specifically, 38 U.S.C.A. § 1728 and 38 U.S.C.A. § 1725. Application of either statute is generally dependent on whether the Veteran has an adjudicated service-connected disability or not. The Board does not find it necessary to discuss § 1728 in detail as that portion of the claim that was already paid was approved under § 1725. The Veteran was not service connected for any disabilities at the time of the 2005 treatment in question. To the extent the potential applicability of § 1728 is raised in the November 2013 informal hearing presentation ("With the benefit of hindsight the [V]eteran's 2005 GI bleed was related to his now service[-] connected PTSD"), the Board notes that the grant of service connection for PTSD was not effective until March 24, 2011. The Veterans Millennium Health Care and Benefits Act authorizes payment or reimbursement for qualifying emergency services provided for nonservice-connected conditions if certain requirements are met. See 38 U.S.C.A. § 1725; 38 C.F.R. §§ 17.1000 - 17.1008. To be eligible for payment or reimbursement for emergency services for nonservice-connected conditions in non-VA facilities, a 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 (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 was not feasibly available and an attempt to use such provider 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 that the nearest available appropriate level of care was at a non-VA medical center); (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.A. 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 (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 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); (h) (not applicable here). (i) The veteran is not eligible for reimbursement under 38 U.S.C.A. 1728 for the emergency treatment provided. 38 C.F.R. § 17.1002. Failure to satisfy any one of the above criteria precludes VA from paying or reimbursing unauthorized private medical expenses. The Board notes that on October 10, 2008, S. 2162, designated as the Veterans' Mental Health and Other Care Improvements Act of 2008, was signed by the President. This bill made various changes to mental health care and also addressed other health care related matters. Relevant to the instant case, the new law amends 38 U.S.C.A. §§ 1725 and 1728 to make mandatory as opposed to discretionary the reimbursement of the reasonable value of emergency treatment of an "eligible" veteran furnished by a non-VA facility, if all of the pertinent criteria outlined above are otherwise satisfied. See Veterans' Mental Health and Other Care Improvements Act of 2008, Pub. L. No. 110-387, § 402, 122 Stat. 4110, 4123-24 (2008). Additionally, this amendment added a provision, which essentially expanded one of the criteria that defines the meaning of "emergency treatment" to include treatment rendered until such time as the Veteran could be transferred safely to a VA facility or other Federal facility and such facility was capable of accepting such transfer; or such time as a Department facility or other Federal facility accepted 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. Id; 38 U.S.C.A. §§ 1725, 1728. The Board will consider and apply the amended version of 38 U.S.C.A. § 1725, which is more favorable to the claimant because it liberalizes the law by mandating reimbursement and expanding the definition of emergency treatment. As set forth, the VAMC essentially conceded that all of the requirements for payment of emergency services under 38 U.S.C.A. § 1725 were met for the period from February 7 to February 8, 2005. They did not approve any payments beyond the date of stability. On review, the evidence shows that the Veteran was stable as of February 9, 2005, and he does not appear to dispute this. Rather, his argument appears to be that there was not a VA medical facility available because they were full. In the November 2013 written brief presentation, the representative questioned where the VA would have put the Veteran on the 9th and 10th, specifically asking "would he have been on a sofa in the lobby?" Unfortunately, the claims folder does not contain detailed information regarding any requests for transfer or the actual availability of beds at the VAMC. The Board, however, finds the Veteran competent to report that he was told the VAMC was full and it has no reason to doubt his credibility in this matter. Significantly, the statement is further supported by the February 10, 2005 private hospital note that indicated an employee spoke with someone from the VAMC on the day before and this individual indicated that there were no beds available for transfer. In resolving all reasonable doubt in the Veteran's favor, the Board finds that although he was stable for transfer on February 9, 2005, a VA facility was not feasibly available at that time. That is, the VAMC was not capable of accepting any transfer of the Veteran due to a lack of bed availability. Accordingly, on this record, the remaining benefit sought on appeal is granted. ORDER Payment or reimbursement for the cost of private medical expenses incurred from February 9, 2005 to February 10, 2005 is granted, subject to the regulations governing the award of monetary benefits. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs