Citation Nr: 1340875	
Decision Date: 12/11/13    Archive Date: 12/20/13

DOCKET NO.  12-31 103A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in South Central VA Health Care Network


THE ISSUE

Entitlement to payment or reimbursement for unauthorized medical services in connection with treatment provided at Memorial Hospital in Gulfport, Mississippi from January 5 to 8, 2012.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and his wife



ATTORNEY FOR THE BOARD

Jeanne Schlegel, Counsel


INTRODUCTION

The Veteran served on active duty from June 1969 to March 1973.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 decision, which was confirmed in a September 2012 determination issued by South Central VA Health Care Network.  

In May 2013, the Veteran's current representative provided the Board a copy of a VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative) which had not previously been associated with the medical claims folder.  

In October 2013, the Veteran appeared and testified before the undersigned at a Board video conference hearing.  The hearing transcript is associated with the claims folder. 

A December 2013 review of the Virtual VA electronic records storage system reveals no additional documents which are not currently associated with the medical claims folder.

Please note this appeal has been advanced on the Board's 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.  On January 5, 2012, while driving, the Veteran suffered from a seizure and hit the side of a bridge.  Police and EMS on the scene initially transported the Veteran to Hancock Medical Center; he continued to have seizures when placed on the stretcher for transport, and again at Hancock Medical Center.

2.  Later on January 5, 2012, medical personnel at Hancock Medical Center determined that more specialized and a higher level of care was needed, as well as a series of tests, which could best be performed at another facility; the Veteran was transferred via ambulance to Memorial Hospital in Gulfport, MS.

3.  The Veteran was kept as a patient at Memorial Hospital from January to 5 to 8, 2012.  The admitting and discharge diagnoses were seizure and altered mental status.  While hospitalized, the Veteran underwent a comprehensive neurological evaluation and studies including an MRA, MRI, and CT scan of the brain.

4.  The Veteran's condition required emergent treatment, and a VA facility was not feasibly available for his care and treatment.  The Veteran's diagnosed condition, seizures and altered mental status, was of a sudden and urgent nature, requiring immediate treatment by the nearest facility, and the Veteran and his wife did not procure private treatment in preference to VA treatment. 

5.  Competent and credible evidence indicates that VAMC in Biloxi, MS was contacted for authorization during and in conjunction with the Veteran's private hospitalization from January 5 to 8, 2012, but that due to an administrative error, the Veteran could not be located as a participant in the VA healthcare system, and as a result no authorization was received. 


CONCLUSIONS OF LAW

The criteria for entitlement to payment or reimbursement of unauthorized medical services in connection with treatment provided at Memorial Hospital in Gulfport, Mississippi from January 5 to 8, 2012 have been met.  38 U.S.C.A. § 1725 (West 2002); 38 C.F.R. §§ 17.1000-17.1005 (2013). 



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran seeks payment or reimbursement of unauthorized medical services in connection with treatment provided at Memorial Hospital in Gulfport, Mississippi from January 5 to 8, 2012.  A Veteran may obtain reimbursement for medical expenses rendered at a non-VA facility under either 38 U.S.C.A. § 1725 or 38 U.S.C.A. § 1728.  As the Veteran is not service-connected for any disease or disability, the provisions of 38 U.S.C.A. § 1728 are not for application. 

The criteria set forth in 38 U.S.C.A. § 1725 provide general authority for reimbursement for the reasonable value of emergency treatment furnished in a non-VA facility for those veterans who are active VA health-care participants (enrolled in the annual patient enrollment system and recipients of VA hospital, nursing home, or domiciliary care under such system within the last 24-month period) and who are personally liable for such treatment, and not eligible for reimbursement under the provisions of 38 U.S.C.A. § 1728.  See 38 U.S.C.A. § 1725 (West 2002); 38 C.F.R. § 17.1002 (2013). 

"Emergency treatment" under the statute is defined as medical care or services furnished when (A) VA or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable; (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) only until such time as the veteran can be transferred safely to a VA or other Federal facility.  38 U.S.C.A. § 1725(f)(1). 

The implementing regulation, 38 C.F.R. § 17.1002, states that emergency services exist where treatment is for a condition of such a nature that a prudent lay person would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health, and indicates that this standard is met if there is an emergency medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) that a prudent lay person who possesses an average knowledge of health and medicine would 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. 

As a reference point, an emergency is also defined as "a sudden, generally unexpected occurrence or set of circumstances demanding immediate action."  Hennessey v. Brown, 7 Vet. App. 143, 147 (1994) (citations omitted). 

An example of when VA or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable is when a veteran is brought to a hospital in an ambulance and the ambulance personnel determines that the nearest available appropriate level of care is at a non-VA medical center.  See 38 C.F.R. § 17.1002(c). 

In order to obtain reimbursement for non-VA emergency services furnished to a veteran for non-service-connected conditions, all of the criteria in § 1725 and its implementing regulations must be satisfied.  See 38 C.F.R. §§ 17.100-17.1008. 

Additionally, regulations provide that 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.  38 C.F.R. §§ 17.52, 17.53.  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. 

The facts of this case may be briefly summarized.  The Veteran is shown to be an active VA health-care participant and he has no service-connected conditions.  

On January 5, 2012, while driving a car in Mississippi with his wife as a passenger, the Veteran had a seizure, hit a bridge and kept driving.  Police were able to pull the car over and call EMS, at which point the Veteran had another seizure when placed on a stretcher for transport.  He was initially taken to the Hancock Medical Center emergency department, and while there he had another seizure.  The emergency department record indicates that the Veteran was non-verbal, slow to respond, and had manifestations of left-sided weakness and left facial drop.  

Ultimately it was determined that the Veteran needed more specialized and a higher level of care, as well as a series of tests, which could best be performed at another facility.  Accordingly, later in the day on January 5, 2012, the Veteran was transferred via ambulance to Memorial Hospital in Gulfport, MS.

The Veteran was kept as a patient at Memorial Hospital from January to 5 to 8, 2012.  The admitting and discharge diagnoses were seizure and altered mental status.  While hospitalized, the Veteran underwent a comprehensive neurological evaluation and studies including an MRA, MRI, and CT scan of the brain.  By January 8, 2012, there were no further work-ups scheduled and the Veteran was authorized to go home, with instructions to follow up with his neurologist.  

In a statement provided by the Veteran's wife dated in July 2012, she indicated that upon arrival at Memorial Hospital, she presented her husband's veteran card to the hospital personnel and believed VA would be contacted for authorization.  She indicated that he was enrolled in the VA healthcare system and had no other insurance.  She also mentioned that on January 9, 2012, she and her husband went to a VA satellite office in Slidell, Louisiana to discuss his private hospitalization.  

In a statement dated and signed by the Veteran in November 2012, it was indicated that the VAMC in Biloxi, MS had been contacted by Memorial Hospital on January 5 and 6, 2012; but that the VAMC had indicated that the Veteran was not in the VA system.

The file contains an October 2013 letter from a patient advocate associated with the Slidell VA outpatient clinic, mentioning that the Veteran and his wife had come to see her in January 2012, following his recent discharge from Memorial Hospital.  It was noted that the Veteran's wife explained that VA had been unable to authorize her husband's private medical treatment, because the VAMC in Biloxi, MS indicated that the Veteran could not be located in their computer as a participant in the VA healthcare system.  The advocate indicated that during the course of the meeting with the Veteran and his wife, it was discovered that the Veteran's name had been incorrectly entered into the VA computer, and this is why the VAMC could not find him in their system.  

In September 2012, VA denied the claim on the basis that a VA facility was feasibly available for the Veteran's care which he received at a private facility between January 5 and 8, 2012.  The probative value of this opinion is substantially reduced as there is no reasoning provided.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (noting that a probative medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions).  

In a Statement of the Case issued in September 2012, it was also determined that there was no documentation found to indicate that VA was notified of the Veteran's private hospital admission and that no VA authorization to treat or request transfer of the Veteran to a VA facility was found.  

There does not seem to be any question here that the Veteran's condition required emergent treatment. 

With respect to feasibility, the Board can find no support for the conclusion that VA facilities were feasibly available for the Veteran in conjunction with the treatment required and received between January 5 and 8, 2012, nor did VHA provide any supporting rationale for that conclusion.  As noted previously in this decision, an example of when VA or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable is when a veteran is brought to a hospital in an ambulance and the ambulance personnel determines that the nearest available appropriate level of care is at a non-VA medical center.  See 38 C.F.R. § 17.1002(c).  That was in fact the case here.

Further, regulations provide that 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.  38 C.F.R. §§ 17.52, 17.53.  

Here the Veteran's seizures were clearly of an sudden and urgent nature, requiring immediate treatment by the nearest facility, particularly given the fact that he was driving while this condition occurred and had been involved in an automobile accident as a result, following which he was described as non-verbal, slow to respond; i.e. at least somewhat incapacitated, particularly in terms of decision making.  EMS on the scene of the accident made the decision to initially bring the Veteran to Hancock Medical Center due to the nature and urgency of his condition, in conjunction with the proximity of that facility.  In turn, medical personnel at the Hancock Medical Center made the decision to transfer the Veteran to Memorial Hospital, again due to the nature and urgency of his condition, and the specialized type of treatment required, in conjunction with the proximity of that facility.  As such, clearly, the Veteran and his wife did not procure the use of a private medical source in preference to available Government facilities; those decisions were made by competent and qualified medical personnel based on evaluation of the Veteran's condition.  Given these facts the Board cannot conclude that a VA facility was feasibly available for the Veteran's treatment.  

Further supporting the claim in this case is competent and credible evidence indicating that the VAMC in Biloxi, MS was contacted for authorization during and in conjunction with the Veteran's private hospitalization from January 5 to 8, 2012.  However, due to an administrative error on the part of the VAMC, the Veteran, although clearly shown to be a participant in the VA healthcare system, could not be located in their system as a participant and as a result no authorization was received.  

As the elements of 38 U.S.C.A. § 1725 appear to have been met, the Board resolves any reasonable doubt in favor of the Veteran by finding that he is entitled to payment or reimbursement for unauthorized medical services under 38 U.S.C.A. § 1725 in connection with treatment provided at Memorial Hospital in Gulfport, Mississippi from January 5 to 8, 2012.  The claim, therefore, is granted.

Finally, as this claim is granted in full, any potential error in VA's duty to notify or assist the Veteran, or in the conduct of the October 2013 Board video conference hearing, would not be prejudicial to the Veteran and need not be discussed.


ORDER

The claim of entitlement to payment or reimbursement for unauthorized medical services in connection with treatment provided at Memorial Hospital in Gulfport, Mississippi from January 5 to 8, 2012, is granted.



____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs