Citation Nr: 1342233	
Decision Date: 12/20/13    Archive Date: 12/31/13

DOCKET NO.  10-27 390	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Bay Pines, Florida


THE ISSUE

Entitlement to payment or reimbursement for costs of medical service rendered on December 31, 2008 at Mease Dunedin Hospital.  


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

C. Lawson, Counsel




INTRODUCTION

The Veteran served on active duty from May 1985 to March 1989.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2009 decision by the Bay Pines, Florida VA Medical Center.

The Veteran presented testimony at a Board hearing in August 2013, and a transcript of the hearing is associated with his claims folder.  


FINDING OF FACT

1.  On December 31, 2008, the Veteran was seen in the Emergency Department at Mease Dunedin Hospital, where she received private medical care for back pain and then was released.

2.  Payment or reimbursement of the cost of the private medical care received at Mease Dunedin Hospital was not authorized in advance by VA.

3.  The evidence of record demonstrates that the treatment provided to the Veteran by Mease Dunedin Hospital on December 31, 2008 was emergent in nature and of such a nature that a prudent laypersons would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health.


CONCLUSION OF LAW

The criteria for payment or reimbursement for the cost of medical service rendered to the Veteran on December 31, 2008 at Mease Dunedin Hospital have been met.  38 U.S.C.A. § 1725 (West 2002 & Supp. 2012); 38 C.F.R. §§ 17.1000-17.1800 (2013).



REASONS AND BASES FOR FINDING AND CONCLUSION

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  Since the claim is being granted, any VCAA notice or assistance deficiencies are harmless.  

The Veteran seeks payment or reimbursement for medical care provided to her on December 31, 2008 at Mease Dunedin Hospital.  She maintains through June 2009, June 2010, and August 2013 statements that she needed to be taken to the nearest hospital for the back pain symptoms that required treatment on that date.  Mease Dunedin Hospital was about a 4 minute or 1 mile drive from her home, whereas the Bay Pines VA Medical Center was about an 18 mile or 36 minute drive.  Her back symptoms that day had brought her to her knees at her home and required her to lay on the floor for a substantial period of time thereafter, icing the back in the meanwhile.  This attempted conservative treatment at home did not help, but instead, her symptoms became worse, and so her boyfriend and his daughter had to carry her out to her car, where they laid her in the reclined front seat of the car, and she laid in the fetal position while they drove her to Mease Dunedin Hospital.  The drive to Mease was "pure agony with every bump, jar, and traffic light.  I would never have been able to tolerate the 17.6 mile drive to the VA at Bay Pines."  On arrival at Mease, they wanted to put her in a gurney, but none was available, and so they used a wheelchair to transport her inside the hospital from the car.  Thereafter, she was given a shot of Lidocaine and a muscle relaxer, and then after some time, her symptoms improved and she was allowed to go back home.  

She testified in August 2013 that her back symptoms at times were so severe that she would not have been able to tolerate the longer ride to the Bay Pines VAMC at the time.  She notes that for all other treatment she had had in the past, including a March 2009 emergency visit (which was before the denial of the instant claim in May 2009) after she broke a toe yet nevertheless drove a manual transmission vehicle for treatment, she went to VA.  Since the emergency room visit in question, she has moved closer to the Bay Pines VAMC to make it easier to get to it.  

VA may contract with non-VA facilities to provide medical services for which VA may assume financial responsibility in certain circumstances.  38 U.S.C.A. § 1703(a)(1)-(8) (West 2002); 38 C.F.R. § 17.52 (2013).  However, there is no allegation in this case that VA contracted with Mease Dunedin Hospital for the Veteran's medical treatment.  A claim for payment or reimbursement of services not previously authorized may be filed by the Veteran who received the services (or his guardian) or by the hospital, clinic, or community resource which provided the services, or by a person other than the Veteran who paid for the services.  38 C.F.R. § 17.123 (2013).

To the extent allowable, payment or reimbursement of the expenses of care, not previously authorized, in a private or public (or Federal) hospital not operated by VA, or of any medical services not previously authorized including transportation (except prosthetic appliances, similar devices, and repairs) may be paid on the basis of a claim timely filed, under the following circumstances:

(a) For Veterans with service-connected disabilities. 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) In a medical emergency. 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) 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.

38 C.F.R. § 17.120 (2013); 38 U.S.C.A. § 1728(a)(1)-(3) (West 2002).

All three statutory requirements must be met before reimbursement can be authorized.  Zimick v. West, 11 Vet. App. 45 (1998); Malone v. Gober, 10 Vet. App. 539 (1997).  In this case, service connection is not in effect for back disability.  There is also no other evidence that the Veteran was rated as permanently and totally disabled due to service-connected disorders, or was participating in a rehabilitation program at the time of her care in December 2008.  Accordingly, criterion (a) is not satisfied, and there is no basis to establish entitlement to reimbursement under 38 U.S.C.A. § 1728.  38 C.F.R. § 17.120 (2013).

However, 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. §§ 17.1000-1003.  To be eligible for reimbursement under that 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 before hand 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. 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) 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

(i) The Veteran is not eligible for reimbursement under 38 U.S.C.1728 for the emergency treatment provided (38 U.S.C.A. § 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).

38 C.F.R. § 17.1002 (2013).

VA recently amended its regulations concerning reimbursement for emergency hospital care and medical services provided to eligible veterans for service-connected and nonservice-connected conditions at non-VA facilities. The purpose of those amendments was to implement provisions from § 402 of the Veterans' Mental Health and Other Care Improvements Act of 2008 (the Act), Public Law No. 110-387, 122 Stat. 4110, which revised 38 U.S.C.A. §§ 1725 and 1728.

The regulatory amendments made the following revisions in accordance with the Act: (1) requiring VA to reimburse the covered costs for emergency care received at non-VA facilities for eligible veterans under §§ 1725 and 1728; (2) extending VA's payment authority for emergency treatment received at a non-VA facility 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 until such transfer was accepted, so long as the non-VA facility made and documented reasonable attempts to transfer the Veteran to a VA facility or other Federal facility; and (3) making the definition of emergency treatment in § 1725(f)(1) applicable to § 1728, including by replacing the standard for determining the existence of a medical emergency in § 17.120(b) with the prudent layperson standard.  The amendments likewise affected 38 C.F.R. §§ 17.120, 17.121, 17.1001, 17.1002, 17.1005, 17.1006, 17.1008.  The effective date of those amendments was January 20, 2012.  76 Fed. Reg. 79067-79072 (Dec. 21, 2011).

Initially, the Board notes that there is no controversy in this case as to whether the requirements of 38 C.F.R. § 17.1002(a), (e), (f), (g), (h), and (i) have been met.  38 C.F.R. § 17.1002.  There is no evidence of record that any of those elements have not been met, and VA did not cite any of those elements as a reason for denying the Veteran's claim.  Combined with relevant evidence of record, the Board therefore accepts that the Veteran meets those elements of her claim.  The claim before the Board thus revolves around whether 38 C.F.R. § 17.1002(b), (c), and (d) were met.

Under 38 C.F.R. § 17.1002(b), 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 the regulation indicates that this standard is met if there is an emergency medical condition manifesting itself by acute symptoms of sufficient severity 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.  38 C.F.R. § 17.1002(b).

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 only be demonstrated 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.

In this case, the evidence is to the effect that the Veteran was unable to get up off the floor after sustaining an episode of back pain which brought her to her knees on December 31, 2008, and failed conservative treatment at home, with her symptoms become worse before going to the Mease Dunedin Hospital.  Additionally, when she was seen in the emergency department at Mease Dunedin Hospital that evening, she complained of severe acute lower back pain and was found to have lower lumbar spine pain which was significantly aggravated whenever she was asked to move.  Furthermore, the Veteran was treated with an injection of Dilaudid, Valium, and Toradol upon being seen at Mease Dunedin Hospital that evening.  Therefore, the Board concludes that the evidence of record demonstrates that a prudent layperson would have believed that the Veteran's situation was emergent in nature, and that the absence of immediate medical attention would result in placing her health in serious jeopardy.  Therefore, the Board finds that the requirements of 38 C.F.R. § 17.1002(b) were met at the time the Veteran sought treatment at the emergency room at Mease Dunedin Hospital.  38 C.F.R. § 17.1002(b).

Under 38 C.F.R. § 17.1002(c), a VA or other Federal facility or provider must not have been feasibly available and an attempt to use them before hand would not have been considered reasonable by a prudent layperson.  The regulations cite as an example of the conditions being met a situation where 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.  38 C.F.R. § 17.1002(c).  

In this case, the Board concludes that VA or other Federal facilities were not feasibly available and an attempt to use them would not have been considered prudent.  The Veteran testified that on December 31, 2008, she had to be carried by her boyfriend and his daughter to her car, for about a 2-4 minute drive to Mease Dunedin Hospital, that the ride to Mease Dunedin Hospital was very difficult for her to tolerate, and that she would not have been able to tolerate an 18 mile, 36 minute drive to the nearest VA facility, and the Board finds this testimony credible.  The Veteran has testified that she has always used VA facilities on all other occasions, including for a toe fracture emergency in the past, where she drove herself to VA, and there is no reason to doubt her on this.  By her account, which the Board accepts, her back pain was so bad on December 31, 2008 that she would not have tolerated a longer ride and that it was reasonable to conclude that a longer drive might make her condition much worse.  Accordingly, the Board finds that the requirements of 38 C.F.R. § 17.1002 (c) were met at the time the Veteran sought emergency room treatment at Mease Dunedin Hospital.  38 C.F.R. § 17.1002(c).  As a result, the Board concludes that the Veteran has met the requirements for VA payment or reimbursement of the costs of the care that was provided at Mease Dunedin Hospital on that date.  

Accordingly, VA payment or reimbursement of costs of medical services on December 31, 2008 at Mease Dunedin Hospital is warranted.  38 U.S.C.A. § 1725; 38 C.F.R. §§ 17.1000-17.1008.


ORDER

Payment or reimbursement for costs of medical services rendered to the Veteran on December 31, 2008 at Mease Dunedin Hospital is warranted.  




____________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs