Citation Nr: 1422452
Decision Date: 05/19/14	Archive Date: 06/26/14

DOCKET NO: 10-17 096              DATE MAY 19 2014

On appeal from the Department of Veterans Affairs Medical Center in Jackson, Mississippi

THE ISSUE

Entitlement to payment or reimbursement of unauthorized medical expenses incurred in connection with hospitalization received at Compass Behavior Center from February xx, 2008 to March x, 2008.

REPRESENTATION

Appellant represented by:   The American Legion

ATTORNEY FOR THE BOARD

Joseph P. Gervasio, Counsel

INTRODUCTION

The Veteran served on active duty from October 1989 to November 1992.

This case comes to the Board of Veterans' Appeals (Board) on appeal of a November 2009 decision of the Department of Veterans Affairs (VA) Medical Center in Jackson, Mississippi (VAMC) that denied payment or reimbursement for medical expenses incurred as a result of treatment received at Compass Behavior Center from February 27, 2008 to March 4, 2008.

FINDINGS OF FACT

The Veteran was treated on February xx, 2008, at the emergency room at Opelousas General Hospital after presenting with psychotic symptoms.

The Veteran was authorized transfer from Opelousas General Hospital to the Alexandria, Louisiana, VA facility on February xx, 2008.

The Veteran was transferred to the Compass Behavior Center on February xx, 2008.

On February xx, 2008, the VA medical facility in Alexandria,Louisiana, informed the Compass Behavior Center that there were no beds available and that they would notify them when a bed became available.

On March x, 2008, the Veteran was transferred to the VA medical facility in Alexandria, Louisiana.

CONCLUSION OF LAW

The criteria for payment or reimbursement of unauthorized private medical expenses incurred at Compass Behavior Center from February xx, 2008, to March x, 2008, have been met. 38 U.S.C.A. §§ 1725, 1728 (West 2002); 38 C.F.R. §§ 17.120, 17.130, 17.1000-1008(2013).

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REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). The claim in this case is governed by the provisions of Chapter 17 of Title 38 of the United States Code. The law pertaining to the duty to notify and to assist and its implementing regulations are not applicable to such claims. See Barger v. Principi, 16 Vet. App. 132, 138 (2002); Lueras v. Principi, 18 Vet. App. 435 (2004).

Notwithstanding the fact that such law is not controlling in these matters, the Board has reviewed the case for purposes of ascertaining that the Veteran has had a fair opportunity to present arguments and evidence in support of his claim for payment or reimbursement of medical expenses. In this case, a letter dated in February 2010, as well as a February 2010 Statement of the Case, informed the Veteran of what evidence was needed to establish the benefits sought, of what VA would do or had done, and of what evidence the Veteran should provide. VA has also done everything reasonably possible to assist the Veteran with respect to his claim for benefits, such as obtaining private medical records, and providing the Veteran with the opportunity for a hearing. Therefore, the Board finds that it is not prejudicial to the Veteran for the Board to proceed to finally decide this appeal.

Payment or Reimbursement of Medical Expenses

The Veteran contends that reimbursement is warranted for treatment received at Compass Behavior Center from February xx, 2008 to March x, 2008 because VA treatment notes indicate that VA staff informed the emergency room at Opelousas General Hospital that a bed was available but not until February xx, 2008 at 8 am, and notes from the Compass Behavior Center indicate that VA informed them on

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February xx, 2008, that no beds were available, and thus, transfer of the Veteran to a VA facility was not possible until March x, 2008.

The record shows that the Veteran was initially treated on February xx, 2008, at the emergency room at Opelousas General Hospital after presenting with psychotic symptoms and was transferred to Compass Behavior Center on February xx, 2008. A February xx, 2008, clinical note from CompasS Behavior Center shows that Compass staff formally requested that the Veteran be transferred to the Alexandria, Louisiana, VA medical facility, and that they were informed that no beds were available at that time, but that patient information was to be faxed to VA from Compass, and they would be informed when a bed became available. The clinical notes state that the patient information was faxed to VA on March 1, 2008, and the Veteran was accepted and transferred on March x, 2008.
A VA treatment note, dated on February 28, 2008, shows that VA was contacted by Opelousas General Hospital to arrange for the Veteran to be transferred to VA. The Veteran was accepted for transfer on February 28, 2008, at 8 am, but when VA contacted Opelousas on February 27, 2008, VA was notified that the Veteran had already been transferred to a non-VA facility. VA informed Opelousas General that payment for the transfer by VA might not be forthcoming, as VA had accepted the Veteran.

On February 28, 2008, VA treatment notes indicate that Compass Behavior Center contacted the VA facility about transfer of the Veteran and a transfer packet was sent to Compass with instructions to complete it and return it for review. Treatment notes dated March 4, 2008, indicate that the treatment packet was received from Compass and the Veteran was transferred that morning to the VA facility.

The Board points out that the Veteran does not claim that his treatment was due to a service-connected disability, or that he is rated as permanently and totally disabled, such that he could be considered for reimbursement under 38 U.S.C.A. § 1728 and 38 C.F.R. § 17.120 (2013). Service connection is not currently in effect for any disability. Therefore, the Board must turn to the law regarding reimbursement for emergency services for non-service-connected disorders in non-VA facilities.

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Section 1725, Title 38, United States Code, was enacted as part of the Veterans Millennium Health Care and Benefits Act, Pub. L, No. 106-177, 113 Stat. 1553 (1999) (effective May 29, 2000). The implementing regulation is 38 C.F.R. § 17.1002. To be entitled to the payment for emergency care under this Act and regulation, the evidence must meet all of the following criteria:

(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 transferred to a VA or other Federal facility;

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 (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;

(i) The veteran is not eligible for reimbursement under 38 U.S.C.A. § 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).

If any one of the foregoing requirements is lacking, the benefit sought may not be granted. See; Zimick v. West, 11 Vet. App. 45, 49 (1998); Malone v. Gober, 10 Vet. App. 539, 547 (1997).

In this case, there is no question that the Veteran was initially provided treatment for a medical emergency of psychotic manifestations, including audio and visual

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hallucinations as well as suicidal ideation on February xx, 2008. His initial treatment was rendered at the Opelousas General Hospital Emergency Room. The record shows that on February 27, 2008, the Veteran was authorized for transfer to the VA facility on February 28, 2008, but that prior to that date, on February 27, 2008, he was transferred to a private facility. Thus VA did not have a bed available for the Veteran on February 27, 2008, and thus a VA facility was not feasibly available for this night.

Moreover, the record shows that on February 28, 2008, the Compass Behavior Center contacted the Alexandria, Louisiana VA facility about transferring the Veteran and was informed that no beds were available. Nothing in the VA treatment notes contradict this statement. In fact, the Board notes that the February 27, 2008, VA treatment notes state that the emergency room at Opelousas General Hospital was informed by VA that a bed was available when they contacted the VA facility, but the February 28, 2008, VA treatment notes do not indicate that a bed was available when contacted by Compass, only that the documents for transferring a patient were sent to the Compass facility. Thus, the Board finds that while a bed may have been available on February 28, 2008, when VA contacted the Opelousas Genearl Hospital on February 27, 2008, that at the time the Compass Behavior Center contacted the VA facility on February 28, 2008, no beds were available.

The Compass treatment records indicate that the transfer papers were sent to the VA facility on March 1, 2008, and that transfer to the VA facility was effectuated on March 4, 2008. Again, the Board notes that nothing in the VA treatment notes contradict this evidence. Thus, the Board finds that a VA facility was not feasibly available and the Veteran's treatment at the Compass Behavior Center was not "in preference to available Government facilities," but was due to an apparent lack of available beds in the VA medical facility in Alexandria, Louisiana. 38 C.F.R. § 17.130.
Finally, the Board finds that the emergency service were provided in a facility that provides emergency care to the public, that the evaluation and treatment of his psychiatric condition was such that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health, that the continued treatment from February xx, 2008 to

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March x, 2008, ws for a continued medical emergency, that the Veteran was enrolled in the VA heathcare system and has no covereage under an alternate health care plan, that the Veteran is financially liable to Compass Behavior Center for the costs of his treatment, that his condition was not work-related or caused by an accident. 38 C.F.R. § 1725 (2013).

For the above reasons, the Board finds that the claim for payment or reimbursement of unauthorized medical expenses from February xx, 2008, to March x, 2008, should be granted.

ORDER

Payment or reimbursement of unauthorized medical expenses incurred in connection with hospitalization received at Compass Behavior Center from February xx, 2008 to March x, 2008, is granted, subject to the statutes and regulations governing the payment of monetary benefits.

GAYLE E. STROMMEN 
Veterans Law Judge, Board of Veterans' Appeals

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