Citation Nr: 1343236 Decision Date: 12/30/13 Archive Date: 01/07/14 DOCKET NO. 10-31 881A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Medical Center (MC) in Murfreesboro, TN THE ISSUE Entitlement to payment or reimbursement by VA for the cost of emergency medical treatment provided by the Memorial Hospital in Chattanooga, Tennessee beginning on March 1, 2010 through March 12, 2010, under the provisions of the Veterans Millennium Health Care and Benefits Act (Millennium Bill Act). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran's spouse and a friend ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1968 to October 1970. The appellant claims as his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April/May 2010 decision by the VAMC Fee Processing Center that denied payment for emergency medical treatment provided by Memorial Hospital in Chattanooga, Tennessee beginning on March 1, 2010 through March 12, 2010. The decision was based on the finding that the Veteran's condition was not emergent and that space was available at VA medical facilities. In December 2011, the appellant testified at hearing from the RO by way videoconference technology before the undersigned Veterans Law Judge. The Virtual VA electronic record was reviewed. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issue on appeal has been accomplished. 2. The Veteran obtained emergency medical treatment at Memorial Hospital in Chattanooga, Tennessee that began on March 1, 2010 continued to March 12, 2010; the treatment was not for a service-connected disorder or pre-authorized by VA. 3. The VA emergency treatment facilities are not shown to have been reasonably available in a situation that a prudent layperson would have reasonably viewed his visit as an emergency or thought that a delay in seeking immediate attention would have been hazardous to life or health. CONCLUSION OF LAW The criteria for payment or reimbursement of unauthorized emergency medical treatment at Memorial Hospital in Chattanooga, Tennessee on March 1, 2010 to March 12, 2010 are met. 38 U.S.C.A. § 1725 (West 2002 & Supp. 2012); 38 C.F.R. § 17.1002 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION To the extent that the action taken hereinbelow is favorable to the Veteran, a discussion of compliance with VA's duty to notify and assist is not required at this time. The appellant is requesting reimbursement for an approximate two-week period of emergency hospitalization and associated medical services rendered at the Memorial Hospital in Chattanooga, Tennessee. The appellant also testified that she saw that the Veteran's health was declining, so she was planning on taking him to the local VA outpatient clinic in Chattanooga for treatment. However, in preparing to leave, after noticing a sharp decline in the Veteran's health ("he could not get up"), she called 911. An ambulance with EMT arrived and strongly advised that the Veteran seek treatment at an emergency hospital (closest one being Memorial Hospital) versus seeking treatment from the outpatient clinic because of the Veteran's condition. Upon arriving at Memorial Hospital, the appellant reported, a series of tests were performed for a host of existing and newly discovered medical problems that showed the Veteran was not able to be transferred due to his condition until he left for hospice care after March 12, 2010. He died shortly thereafter. VA may pay or reimburse veterans for payment of medical expenses incurred in non-VA facilities where: (1) such care or services were rendered in a medical emergency of such a nature that delay would have been hazardous to life or health; (2) such are or services were rendered to a veteran in need thereof (A) for an adjudicated service-connected disability, (B) for a nonservice-connected disability associated with and held to be aggravating a service-connected disability, (C) for any disability of a veteran who has a total disability permanent in nature from a service-connected disability; or (D) for any illness in the case of a veteran who is a participant in a vocational rehabilitation program that necessitates care or treatment to make possible such veteran's entrance into a course of training, prevent interruption of such course of training, or hasten completion of such course of training; and, (3) VA or other Federal facilities were not reasonably available and an attempt to use them beforehand would not have been reasonable, sound, wise or practicable. 38 U.S.C.A. § 1728(a) ; see also 38 C.F.R. § 17.120. The Court has held that all three of these statutory requirements must be met before payment is authorized. Zimick v. West, 11 Vet. App. 45, 49 (1998). In this case, the veteran received emergency treatment at Memorial Hospital in Chattanooga, Tennessee beginning on March 1, 2010 to March 12, 2010. There is no indication in the charges or the associated laboratory fees for the medical emergency were associated with any service-connected disability (the Veteran is not service connected for any disability). Accordingly, the treatment does not meet the criteria for entitlement under 38 U.S.C.A.§ 1728(a) as cited above. He may, however, be entitled to payment for such care under 38 U.S.C.A.§ 1725 and 38 C.F.R.§§ 17.1000-1003 (2013). To qualify for reimbursement under the Millennium Bill act as articulated in 38 C.F.R. § 17.1002, payment or reimbursement for emergency treatment (including medical services, professional services, ambulance services, ancillary care and medication including a short course of medication related to and necessary for the treatment of the emergency condition that is provided directly to the patient for use after the emergency condition is stabilized and the patient is discharged) will be made only if all of the following conditions are met: (a) The emergency services were provided in a hospital emergency department or 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 that VA has an agreement with to furnish health care services for veterans 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 had no coverage under a healthcare 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 failure by the veteran or the 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 of failure to exhaust appeals of the denial of payment); (g) If the condition for which 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 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.A. § 1728 for the emergency treatment. Congress has significantly amended 38 U.S.C.A. § 1725 effective from February 1, 2010. The amendment provides that VA may provide reimbursement for emergency treatment when the veteran has a third-party payer, and also provides that payment may be made for treatment before the date of enactment of the amendment if the circumstances applicable to the veteran make it appropriate to do so. See Expansion of Veteran Eligibility for Reimbursement by Secretary of Veterans Affairs for Emergency Treatment Furnished in a Non-Department Facility, Pub. L. No. 111-137, Stat. 3495. Effective on May 21, 2012, VA amended its regulations to be consistent with the Statute. The amended Regulation provides that payment may be considered even if an applicant has a third-party payer, and also provides that a claim may be filed as late as one year after May 21, 2012. See amended 38 C.F.R. §§ 17.1001(g) and 17.1004(f). However, in the present case the Veteran does not have a third-party payer, so the amendments to the regulation are not applicable. The criteria are conjunctive, not disjunctive; accordingly, all nine criteria must be met. Melson v. Derwinski, 1 Vet. App. 334 (1991). The Board notes at this point that the eight of the nine criteria of 38 C.F.R. § 17.1002 are established; the only item under contention is the availability of VA facilities under 38 C.F.R. § 17.1002(c). The appellant asserts that the closest VAMC to their home was in Murfreesboro VAMC, approximately 110 miles away. She also asserts that the emergency medics advised her that the local VA Community-Based Outpatient Clinic (CBOC) in Chattanooga was not the appropriate venue for this type of medical emergency that was required in that the CBOC did not provide emergency services. The VAMC has not indicated exactly whether VA medical facilities were reasonably available to the Veteran at the time of his emergency without traveling from Chattanooga (the Veteran's home) to Murfreesboro VAMC. The appellant asserts that the emergency medics informed her that the Veteran's health condition required emergency attention, the kind that the CBOC would not be able to provide. The appellant testified that, based on the Veteran's condition at the time the ambulance arrived, the medical personnel heavily advised her that emergency hospital care was necessary and that she trusted their medical judgment. Absent any evidence of record to the contrary, the Board finds that the Veteran's wife's assertions about her decision to seek emergency treatment at Memorial Hospital rather than to drive approximately 110 miles to the Murfreesboro VAMC are credible in showing that her decision was reasonably supported. Based on the evidence, the Board finds that the criteria for payment or reimbursement of unauthorized emergency medical expenses at Memorial Hospital in Chattanooga, Tennessee beginning on March 1, 2010 to March 12, 2010 are met. ORDER Payment or reimbursement of unauthorized emergency medical expenses at Memorial Hospital in Chattanooga, Tennessee beginning on March 1, 2010 to March 12, 2010 is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs