Citation Nr: 1340169	
Decision Date: 12/05/13    Archive Date: 12/20/13

DOCKET NO.  11-03 320	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Cleveland, Ohio


THE ISSUE

Entitlement to payment or reimbursement of unauthorized medical expenses incurred at Wooster Community Hospital from July 29, 2010 to August 1, 2010. 


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

Debbie A. Breitbeil, Counsel

INTRODUCTION

The Veteran apparently served on active duty from July 1967 to July 1970 (the record before the Board does not include a DD Form 214 or a service department verification of his service).  This case comes to the Board of Veterans' Appeals (Board) on appeal from an October 2010 administrative decision by the Department of Veterans Affairs (VA) Medical Center (MC) in Cleveland, Ohio, which denied payment or reimbursement for unauthorized medical expenses incurred at Wooster Community Hospital from July 29, 2010 to August 1, 2010.  In October 2011, a Travel Board hearing was held before the undersigned; a transcript is associated with the record.  


FINDINGS OF FACT

1.  On July 29, 2010, the Veteran was transported to Wooster Community Hospital and received emergency treatment, and such care was not authorized by VA in advance.  

2.  At the time the treatment was furnished at Wooster Community Hospital, the Veteran was enrolled in the VA health care system and had received medical services within the preceding two-year period, was financially liable to Wooster for the treatment, had no coverage under a health plan contract for payment or reimbursement for the treatment, had no contractual or legal recourse against a third party to extinguish his liability (the treatment was not for an accident or work-related injury), and was not eligible for reimbursement under 38 U.S.C.A. § 1728 (he had no service-connected disabilities).  

3.  A prudent person would reasonably have considered that delay in seeking immediate medical attention which the Veteran received on July 29, 2010, would have been hazardous to life or health.  

4.  It is not shown that a VA or other federal facility/provider was feasibly available to provide the necessary medical care for the duration of the Veteran's stay at Wooster Community Hospital from July 29, 2010 to August 1, 2010.


CONCLUSION OF LAW

The criteria for payment or reimbursement of unauthorized medical expenses incurred for treatment at Wooster Community Hospital from July 29, 2010 to August 1, 2010 are met.  38 U.S.C.A. §§ 1725 (West 2002); 38 C.F.R. §§ 17.1000-1005 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim.  As this decision grants the benefit sought, no further discussion of the VCAA is necessary. 

Legal Criteria, Factual Background, and Analysis

The Veteran has filed a claim for payment or reimbursement for the cost of unauthorized private medical expenses incurred at Wooster Community Hospital from July 29, 2010 to August 1, 2010.  

Records in the file, to include the Veteran's testimony, indicate that he does not have a service-connected disability, is in receipt of nonservice-connection pension benefits, is not covered by health insurance (and not eligible for Medicaid), and is enrolled in the VA healthcare system.  He was treated (hospitalized) at a VA facility in January 2010, and his last VA visit before his treatment at Wooster Community Hospital was in June 2010 for a CT scan.  
The basic facts are not in dispute.  On July 29, 2010, the Veteran was transported to Wooster Community Hospital by ambulance.  An EMS urgent care report indicates that the Veteran was picked up at his residence, where he was found to be sitting on his front porch and was observed to be oriented, pale, and with a complaint of slight chest pain.  The Veteran described symptoms of vomiting and diarrhea, without retention of any food, liquids, or medicine.  He also gave a medical history of diabetes and a heart condition.  En route to the hospital, the Veteran was given oxygen, and an IV was attempted.  

Hospital records and summaries indicate that the Veteran had had chronic diarrhea for months if not years but that he was now vomiting multiple times a day for the last three days and could not make it to the VA for an appointment that day.  He had been unable to eat or drink anything over the last two days.  He asserted that he wanted to be transferred to the VA for a gastrointestinal workup.  He complained that it hurt to walk.  X-rays showed, among other things, moderate gaseous distention of bowel loops compatible with ileus (intestinal or bowel obstruction).  His case was initially discussed with the VA through the nursing staff at Wooster, but as VA had no beds the Veteran had to be referred to admission overnight.  After some treatment, the Veteran felt a little better and was stable and improved.  Following additional testing, the impressions were dehydration/acute renal failure, abdominal pain/ileus, coronary artery disease, diabetes mellitus type 2, hypercholesterolemia, DVT prophylaxis, gastroesophageal reflux, and weakness.  The hospital discharge summary indicates that initial radiographs demonstrated ileus, and that laxatives and enemas did not improve the condition.  Subsequent administration of GoLytely preparation did finally resolve the ileus and abdominal distention, as shown by repeat radiographs on August 1, 2010.  The Veteran was discharged from the hospital on August 1, 2010, with diagnoses of ileus and obstipation.  

VA progress notes indicate that on July 29, 2010, the patient transfer center (PTC) was contacted by Wooster Hospital with regard to the Veteran's emergency room diagnoses of intractable nausea and vomiting.  PTC relayed that there were no VA beds available and that the Veteran could not accommodated.  In an addendum note on July 30, 2010, it appears that there was to be a follow-up after the Veteran and doctor were consulted; however, the result of the consultation was not recorded and there is no indication that the status of the bed availability had changed.  A final addendum note on August 1, 2010 indicates that according to medical records the Veteran was discharged home that day, and the file was closed.  

At his hearing in October 2011, the Veteran testified that he called for an ambulance on July 29, 2010 because he felt that it was an emergency due to his condition of diarrhea, stomach cramps, vomiting, and dehydration.  Before calling for the ambulance, he called a VA outpatient facility (he thought it might have been the Canton VA), which advised him to call 9-1-1 in the event of an emergency.  He said he told Wooster Hospital of his desire to be transferred to the VA but was informed that there were no VA beds available.  

Generally, the admission of a veteran to a non-VA hospital at VA expense must be authorized in advance.  See 38 C.F.R. § 17.54.  In this case, the Veteran has not claimed, and the record does not show, that his care at Wooster Community Hospital was authorized in advance.  Therefore, payment for the private medical treatment received from July 29, 2010 to August 1, 2010 is not warranted for the expenses incurred in conjunction with that treatment under 38 U.S.C.A. § 1703 based on prior authorization.

Nevertheless, 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. §§ 17.1000-1005.  To be eligible for reimbursement under this authority, all of the following conditions must be satisfied:

(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 them 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).  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 (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);

(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 the veteran has no contractual or legal recourse against a third party that could reasonably be pursued for the purpose of extinguishing, in whole or in part, the veteran's liability to the provider; and

(h).  The veteran is not eligible for reimbursement under 38 U.S.C. 1728 for the emergency treatment provided (38 U.S.C. 1728 authorizes VA payment or reimbursement for emergency treatment to a limited group of veterans, primarily those who receive emergency treatment for a service-connected disability).

See 38 C.F.R. § 17.1002.  

Under 38 U.S.C.A. § 1725, the definition of the term "emergency treatment" is defined as medical services furnished, in the judgment of the Secretary, (1) when Department or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable; (2) when such 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 (3) until such time as the Veteran can be transferred safely to a Department facility.  38 U.S.C.A. § 1725(f)(1).

The regulations do not require that a veteran's treatment actually be proven emergent from a purely medical standpoint in order to qualify for payment or reimbursement.  Rather, it need be demonstrated only that the initial evaluation and treatment was 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, that is, 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); see also, Swinney v. Shinseki, 23 Vet. App. 257, 267 (2009).

Initially, the Board notes that the evidence of record as previously described shows that the medical treatment in question covering the period of July 29, 2010 to August 1, 2010 was provided in a non-VA facility (Wooster Community Hospital), and that the Veteran had been enrolled in the VA health care system and received medical services within the past two years before the treatment at Wooster began on July 29, 2010.  Further, at the time of private hospital treatment, the Veteran had no coverage under a health plan contract, and the billings statements indicate that he was personally liable for the cost of treatment.  There is also no indication that the Veteran's condition treated at Wooster was caused by an accident or work-related injury such that the Veteran would have a claim (contractual or legal recourse) against a third party to extinguish his liability.  Without any service-connected disability, the Veteran is not eligible for reimbursement for the treatment provided by Wooster under 38 U.S.C.A. § 1728.   

As to whether a medical emergency existed, the Board observes that the regulation indicates that an emergency exists if a prudent layperson would have reasonably expected that delay in treatment would be hazardous to life or health.  The Veteran called for an ambulance because he believed his situation to be an emergency, about which he testified under oath.  Upon initial contact, he was pale and complaining of chest pain, vomiting, and diarrhea.  He was administered oxygen.  In the emergency room, it was learned that he was unable to eat or drink for the past two days and had been vomiting many times a day for the past three days.  He was weak and unable to walk without pain.  Initial X-rays showed an intestinal or bowel obstruction.  His health status was serious enough to require admission to the hospital and further treatment that lasted for two overnight stays in the facility.  Initial treatments of laxatives and enemas were not helpful, but X-rays on the third day showed that a subsequent treatment of GoLytely preparation resolved the gastrointestinal problem and the Veteran was able to be discharged.  

Based on the evidence noted herein and resolving all reasonable doubt in the Veteran's favor, the Board concludes that a prudent lay person would have believed that a delay in seeking treatment would have been hazardous to Veteran's health and that his emergency room visit on July 29, 2010, which necessitated admission to the hospital for further treatment, was emergent.  It is conceivable for one with an average knowledge of health and medicine that without having received immediate medical attention, there might have been serious intestinal dysfunction or serious impairment of his lower gastrointestinal tract due to blockage confirmed by radiological study.  

Finally, the Board concludes that there was no VA facility that was feasibly available to the Veteran.  As noted above, upon arrival at Wooster Hospital the Veteran requested to be transferred to VA to undergo a gastrointestinal work-up.  Wooster contacted VA and was informed by VA's PTC on July 29, 2010 that there were no beds available.  Such was noted on medical records as well as in VA PTC progress notes.  In light of these factors, the Board concludes that a VA facility was not feasibly available to the Veteran.  

It is noted that VA will not approve claims for payment or reimbursement for the costs of emergency treatment under 38 U.S.C.A. § 1725, which was not previously authorized, beyond the date on which the medical emergency ended; an emergency ends when a designated VA clinician has found that the veteran who received emergency treatment could have been transferred to a VA medical center (or other federal facility that VA has an agreement with to furnish health care services for veterans) for continuation of treatment.  38 C.F.R. § 17.1005(b).  However, as is applicable to the Veteran's case, payment or reimbursement may be approved for continued, non-emergency treatment when:  (1) the non-VA facility notified VA at the time the veteran could be safely transferred to a VA facility (or other federal facility that VA has an agreement with to furnish health care services for veterans) and the transfer of the veteran was not accepted, and (2) the non-VA facility made and documented reasonable attempts to request transfer of the veteran to VA (or to another federal facility that VA has an agreement with to furnish health care services for veterans), which means the non-VA facility contacted the VA Transfer Coordinator, Administrative Officer of the Day, or designated staff responsible for accepting transfer of patients at a local VA (or other federal facility) and documented such contact in the veteran's progress/physicians' notes, discharge summary, or other applicable medical record.  38 C.F.R. § 17.1005(c).  

As documented in the Wooster hospital summary and VA progress notes, prior to admitting the Veteran for treatment on July 29, 2010, Wooster Community Hospital emergency department contacted VA's PTC for the purpose of transferring the Veteran to the VA, but the Veteran was not accepted due to the unavailability of a bed.  Moreover, there is no indication that a bed became available prior to the Veteran's discharge from Wooster on August 1, 2010.  

In sum, the Board finds that it was reasonable and prudent for the Veteran to decide that delay in seeking immediate medical attention would have been hazardous to his life or health, and that a VA facility was not feasibly available.  Accordingly, the criteria for payment or reimbursement of the unauthorized medical expenses resulting from the non-VA medical treatment at Wooster Community Hospital from July 29, 2010 to August 1, 2010 are met.  


ORDER

The appeal seeking payment or reimbursement of unauthorized medical expenses incurred at Wooster Community Hospital from July 29, 2010 to August 1, 2010 is granted.


____________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs