Citation Nr: 1343099 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 12-18 641 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Northern California Health Care System (NCHCS) THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred by the Veteran related to treatment at Sutter Memorial Hospital from May 15, 2011, to May 16, 2011. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran had active service from September 1972 to July 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 administrative decision of the Department of Veterans Affairs Northern California Health Care System (VANCHCS) in Mare Island, California, which denied the claim for reimbursement of medical care expenses incurred at Sutter Memorial Hospital from May 15, 2011 to May 16, 2011 In July 2013, the Veteran testified at a videoconference hearing, at the RO, before the undersigned Veterans Law Judge. A copy of the hearing transcript is attached to Veterans Appeals Control and Locator System (VACOLS) and has been reviewed. The Board notes that review of Virtual VA shows that no paperless efolder has been established for the Veteran. Further, the Board has reviewed the Veteran's paperless file in VBMS (Veterans Benefits Management System). The appeal is REMANDED to the VANCHCS. VA will notify the appellant if further action is required on his part. REMAND The Veteran claims reimbursement or payment of medical expenses incurred as a result of a private hospitalization at Sutter Memorial Hospital, a non-VA facility, from May 15, 2011 to May 16, 2011, and as a result of being transported by an ambulance. The circumstances leading up to the hospitalization at Sutter Memorial Hospital (on May 15, 2011) began two days earlier, when, on May 13, 2011, the Veteran reported he was feeling sick and had elevated blood pressure of 225/118, and walked next door to the fire department in Georgetown, California. He claimed that an EKG was done, which was irregular, and he was put in an ambulance and taken to Marshall Hospital. The Veteran contends that when he was put in the ambulance, he advised he needed to go to VA facility in Mather, but he was told that he would be taken to the nearest hospital first and then go from there. He contends that while he was at Marshall Hospital, he advised that he needed to go to a VA facility, but was reportedly told that by the doctors at Marshall Hospital that they had contacted the VA facility, and the VA facility reportedly said they had a bed available, but there was not a doctor available to do the necessary procedure - heart catheterization. After two days at Marshall Hospital, he was transferred to Sutter Memorial Hospital where the cardiac catheterization was performed. The record reflects he was discharged the next day, on May 16, 2011. It appears that the medical reimbursement claim process was initiated in June 2011 by two private entities: (1) Sutter Memorial Hospital (for medical treatment rendered from May 15, 2011 to May 16, 2011 resulting in medical bills totaling $38,138.85); and (2) the ambulance services provider (apparently El Dorado County Ambulance. for emergency 911 transport, rendered as a result of a 911 emergency call, resulting in a bill of $2,160). Under 38 U.S.C.A. § 1703, when VA facilities or other government facilities are incapable of furnishing economical hospital care or medical services because of geographic inaccessibility or are incapable of furnishing care or services required, VA may contract with or authorize non-VA facilities for care. 38 U.S.C.A. § 1703(a); 38 C.F.R. § 17.52(a). When, as here, a Veteran receives treatment at a non-VA facility without prior authorization, there are two statutes that allow for him 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. Here, the Veteran has no service-connected disabilities, thus, the emergency treatment in May 2011 was for a disability not service-connected, and his claim must be analyzed pursuant to the Veterans Millennium Health Care and Benefits Act (Millennium Act). According to 38 U.S.C.A. § 1725, payment or reimbursement of non-VA emergency medical services for nonservice-connected disorders for Veteran's without insurance is available if certain conditions are met. 38 U.S.C.A. § 1725; 38 C.F.R. §§ 17.1000-17.1008. To be eligible for payment or reimbursement under this alternative statute, the treatment must satisfy all of the conditions set forth in the regulatory provisions in 38 C.F.R. § 17.1002, as follows: (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 transferred to a VA or other Federal facility (in other words, 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, such as 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. 1728, as already explained, 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 U.S.C.A. § 1725; 38 C.F.R. §§ 17.1000-17.1008. The Board notes that the criteria under 38 C.F.R. §§ 17.1002 must all be met. See Melson v. Derwinski, 1 Vet. App. 334 (June 1991). A review of the statement of the case (SOC) issued in May 2012, shows that the Veteran's claim for payment or reimbursement of the medical expenses incurred as a result of his hospitalization at Sutter Memorial Hospital, from May 15, 2011 to May 16, 2011, was denied because "[b]eds were available in SAC VA per Director's morning call ICU had 2 beds available TCU with 3 beds avail". Review of the SOC also shows that decision was based on the following the regulation which was cited -- 38 C.F.R. § 17.120. The problem with this SOC is that it relied upon the incorrect regulation, because 38 C.F.R. § 17.120 deals with treatment for service-connected disabilities, of which is not the case here. Further, there is no indication in the SOC, or anywhere in the record, as to the source from which the "Director's morning call" was taken. Of record are treatment records from Sutter Memorial Hospital regarding the Veteran's hospitalization from May 15 to May 16, 2011, as well as a summary of charges incurred during this time, and the Board can find no indication of a "Director's morning call" in any of these records. This matter must be remanded, therefore, in order for the proper regulation to be considered (38 C.F.R. §§ 17.1002), and for the source of the "Director's morning call" to be identified and associated with the record. The Board also notes that additional development of the medical evidence must be undertaken. The medical records that have been associated with the file include a prehospitalization report dated May 15, 2011, apparently completed by the ambulance personnel that transported the Veteran from Marshall Hospital to Sutter Memorial Hospital, as well as numerous records and a discharge summary from Sutter Memorial Hospital. There are, however, no records from Marshall Hospital in the files that are now before the Board. Additionally, at his hearing, the Veteran testified that there was "supposedly a letter from Marshall sent to VA Mare Island" which confirmed that Marshall Hospital was advised that the VA facility had beds available, but would not have a doctor to do the catheterization for three or four days. Presumably such letter would be included in Marshall hospital's records or VA's records. Thus, on remand, records from Marshall Hospital and from the relevant VA facility, apparently the Sacramento VAMC, should be obtained, to include any documents pertaining to any contact between Marshall Hospital and the VA facility, regarding the Veteran, dated between May 13, 2011 and May 16, 2011. Also, there are two other documents of record which require further explanation. First, there is a document titled "Declaration", signed by a certifying official in June 2011, which includes the following language "I hereby certify that this claim meets all of the conditions for payment by VA for emergency medical services under 39 (sic) C.F.R. § 17.1002and 17.1003". The provider name is listed as "El Dorado County Ambulance". This suggests that the expenses related to the Veteran's ambulance transportation have been approved. However, the Veteran testified that he thought the claim to cover the ambulance transportation bill was still on appeal. On remand, the significance of this document, if any, should be explained. Further, there is a document titled "Medical Worksheet", which was completed by a "nurse reviewer" on May 16, 2011. This appears to be a worksheet to be used by a VA medical officer to authorize and/or deny reimbursement benefits. The form lists a number of designated reasons for actions but does not provide any space for the medical officer to link any predesignated reason to the specific facts of the case at hand or to add comments. In this worksheet, it was noted that the Veteran had been transported to Sutter Memorial from "MMC" on May 15, 2011, with a diagnosis of chest pain with unstable angina. It was noted that the Veteran's eligibility was based on "NSC" (non service-connected), no insurance, and having been treated in the VA within 24 months. Under the part of the document titled "Clinical Review: Recommendation" the following boxes were checked, "Deny due to: VA facilities were available". It appears that the reasons for the decision were simply checked, and form signed by the nurse reviewer (medical officer), with no factual references or rationale for the determination provided. On remand, this determination must be explained and/or based on citations to documents or facts in the record. Finally, it is unclear whether there may be an additional records or files. Before the Board currently is the Veteran's claims folder as well as a separate file that specifically pertains to his medical reimbursement claims. On remand, a determination should be made if there are any other records or files that might pertain to this Veteran and his reimbursement claims. Accordingly, the case is REMANDED for the following action: 1. Determine whether there are additional files or records for the Veteran, beyond the claims file and appeal folder, that might be pertinent to his reimbursement claims. 2. With any authorization needed from the Veteran, obtain any pertinent records from Marshall Hospital and the Sacramento VAMC, dated from May 13, 2011 to May 16, 2011, to specifically include any records regarding the decision to not transfer the Veteran to a VA facility. Negative replies should be requested. 3. Explain the significance, if any, of the document titled "Declaration", signed by a certifying official in June 2011, and includes the provider name listed as "El Dorado County Ambulance". 4. Request review of this matter by a medical officer for a supplemental determination of whether a VA or other Federal facility was available that could provide the necessary treatment, and whether it would have been feasible to transfer him to such a facility. The physician must point to specific documents or facts in the record, and provide a rationale for any opinion reached. Conclusory statements or use of a form with circled reasons, without explanation, is not sufficient. 5. Thereafter, the issue on appeal should be readjudicated. If any benefit sought on appeal is not granted to the Veteran's satisfaction, he should be provided with a Supplemental Statement of the Case (SSOC) which includes citation to, and consideration of, the proper regulation, 38 C.F.R. §§ 17.1002, as well as a notation of the source of the "Director's morning call". The Veteran should be afforded the appropriate opportunity to respond to the SSOC. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ FRANK J. FLOWERS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).