Citation Nr: 1418487 Decision Date: 04/25/14 Archive Date: 05/02/14 DOCKET NO. 11-08 708A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Gainesville, Florida THE ISSUE Entitlement to payment or reimbursement of medical care expenses incurred at a private facility on November 30, 2010 and December 7, 2010. ATTORNEY FOR THE BOARD Donna D. Ebaugh, Counsel INTRODUCTION The Veteran had active duty service from July 1971 to November 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an administrative decision issued by the Department of Veterans Affairs Medical Center (VAMC) in Gainesville, Florida, which denied the Veteran's claim for payment for medical services rendered by a private facility on November 30, 2010 and December 7, 2010. The Veteran initially requested a hearing before the Board at a local VA office. The VA Regional Office (RO) in St. Petersburg, Florida, scheduled him for a hearing to be held in August 2013; however, the July 2013 notice letter was returned as undeliverable. The RO then contacted the Veteran by telephone and a report of contact dated in August 2013 notes that his address was verified and updated, and that he reported that he could not attend his scheduled hearing. The hearing was then canceled and his file was forwarded to the Board. The Board sent him a letter in August 2013 informing him that it had received his file, the appeal had been docketed, and the Board provided him with information regarding hearing requests. There is no correspondence of record from the Veteran requesting to reschedule the canceled hearing. Accordingly, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2013). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Veterans Benefits Management System (VBMS)) claims file associated with the Veteran's claim. Currently, the VBMS file is empty. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). In claims involving payment or reimbursement by VA for medical expenses incurred as a result of treatment at a private facility, there are three different possible theories of entitlement: (1) the private medical services were authorized by VA; (2) the Veteran is entitled to payment or reimbursement for services not previously authorized that are related to or aggravated a service-connected disability; or (3) the Veteran is entitled to payment or reimbursement for services not previously authorized relating to a nonservice-connected disability. See 38 U.S.C.A. §§ 1703(a), 1725, and 1728(a). 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. Whether treatment was authorized is a factual, not a medical, determination. Similes v. Brown, 5 Vet. App. 555 (1994); see 38 U.S.C.A. § 1703(a); 38 C.F.R. § 17.54. In the case of an emergency that existed at the time of admission, an authorization may be deemed a prior authorization if an application is made to VA within 72 hours after the hour of admission. 38 C.F.R. § 17.54. When a Veteran receives treatment at a non-VA facility without prior authorization, the law provides two related, but independent avenues for obtaining payment or reimbursement for medical expenses, 38 U.S.C.A. § 1725 and 38 U.S.C.A. § 1728. Pursuant to the Veterans Millennium Health Care and Benefits Act, payment or reimbursement of non-VA emergency medical services for nonservice-connected disorders is available if certain conditions are met. 38 U.S.C.A. § 1725; 38 C.F.R. §§ 17.1000-17.1008. Specifically, to be eligible for reimbursement under these provisions for a nonservice-connected disorder, the Veteran must satisfy nine separate conditions: (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) 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 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, 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 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(a)-(i). The Board points out that the provisions in 38 C.F.R. § 17.1002 are conjunctive, not disjunctive; i.e. all of the enumerated criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). In addition, the Board notes that the provisions of 38 U.S.C.A. § 1725 were changed via legislation which became effective October 10, 2008. See Veterans' Mental Health and Other Care Improvements Act of 2008, Pub. L. No. 110-387, § 402, 122 Stat. 4110 (2008). Specifically, the pertinent change is that in 38 U.S.C.A. § 1725, the word "shall" in the first sentence, replaced the word "may." This made the payment or reimbursement by VA of emergent treatment non-discretionary, if the Veteran satisfied the requirements for such payment. Additionally, this amendment added a provision, which essentially expands one of the criteria that defines the meaning of "emergency treatment" to include treatment rendered (1) 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; (2) until such time as a Department facility or other Federal facility accepts such transfer if: (A) at the time the Veteran could have been transferred safely to a Department facility or other Federal facility, no Department facility or other Federal facility agreed to accept such transfer; and (B) the non-Department facility in which such medical care or services was furnished made and documented reasonable attempts to transfer the Veteran to a Department facility or other Federal facility. Id. Under 38 U.S.C.A. § 1728 and 38 C.F.R. § 17.120, VA may reimburse Veterans for unauthorized medical expenses incurred in non-VA facilities as follows: (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 (does not apply outside of the States, Territories, and possessions of the United States, the District of Columbia, and the Commonwealth of Puerto Rico); (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. All three statutory requirements (a, b, and c) must be met before the reimbursement may be authorized under 38 U.S.C.A. § 1728 and 38 C.F.R. § 17.120. See Zimick v. West, 11 Vet. App. 45, 49 (1998); Hayes v. Brown, 6 Vet. App. 66, 68 (1993). In this case, the Veteran is seeking payment or reimbursement for medical expenses incurred on two occasions in which he reportedly choked on food and sought emergency treatment at a non-VA facility. He is not service-connected for any disability but is enrolled in care with VA and received VA treatment within 24 months preceding the claimed treatments. The current record also establishes that the Veteran does not have coverage under a health-plan contract for payment or reimbursement of the treatment rendered on November 30, 2010 or December 7, 2010. Therefore, the VAMC adjudicated his claim for payment or reimbursement of medical care expenses pursuant to the Veterans Millennium Health Care and Benefits Act. 38 U.S.C.A. § 1725; 38 C.F.R. §§ 17.1000-17.1008. In December 2010, the VAMC initially denied the claim citing no prior authorization for treatment on either occasion. In his January 2011 notice of disagreement, the Veteran argued that no prior authorization was required as both treatments were for emergencies. In the March 2011 statement of the case, the VAMC continued to deny the claim citing treatment at Borland Groover Clinic on both occasions and noting that the clinic was not equipped to handle emergency care. There is some dispute as to the location of the reported emergency treatment. In the Veteran's substantive appeal, he contends that he was treated at Memorial Hospital in Jacksonville, Florida, on both occasions and was not seen at the Borland Groover Clinic on those dates. However, treatment records in the file indicate that he was treated as Borland Groover Clinic on November 30, 2010 and BCC imagery on December 7, 2010. With respect to the nature of the alleged emergencies in question, the Veteran has consistently asserted that he was choking on both occasions and that treatment sought on November 30, 2010 and December 7, 2010 was at an emergency room. In his notice of disagreement as well as in his substantive appeal, he reported that on both occasions he was choking on a piece of food, was regurgitating saliva, and had difficulty breathing. In his substantive appeal, he reported that on both occasions he contacted the VA clinic in St. Augustine, where he normally received primary care treatment, prior to visiting the emergency room, but received a recording, informing him to call 911 if he was calling about an emergency. He determined that on both occasions, the VA offices in Jacksonville and St. Augustine were closed and that driving an hour and a half to the Gainesville VAMC was not an option. He noted that his roommate drove him to the emergency room at Memorial Hospital to receive treatment. As the Memorial Hospital records have not been associated with the file and there is a dispute as to the location of the treatment on November 30, 2010 and December 7, 2010, records from Memorial Hospital should be requested and associated with the file. Thereafter, any additionally indicated development, to include obtaining any necessary opinions regarding the nature of the Veteran's treatment, should be conducted and the claim readjudicated. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and obtain appropriate authorization and/or request that he obtain copies of any treatment records as pertaining to treatment rendered at Memorial Hospital in Jacksonville, Florida, on November 30, 2010 and December 7, 2010. If the Veteran responds, all reasonable attempts should be made to obtain such records. Make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 2. After completing the above, and any other development as may be indicated, to include obtaining any necessary opinions regarding the nature of the Veteran's treatment, his claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matter 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 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. 2013). _________________________________________________ A. JAEGER 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) (2013).