Citation Nr: 1449385 Decision Date: 11/06/14 Archive Date: 11/12/14 DOCKET NO. 12-04 865 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Huntington, West Virginia THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred during a hospitalization at King's Daughters Medical Center from October 5, 2010, through October 8, 2010. ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active service in the United States Army from October 1969 to April 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2010 and January 2011 decisions by the Department of Veterans Affairs (VA) Medical Center (VAMC) in Huntington, West Virginia. The Veteran requested a hearing before a Veterans Law Judge at the RO (travel board hearing) in his December 2011 substantive appeal (VA Form 9). However, he failed to report for the hearing scheduled in October 2012. He has requested that the hearing be rescheduled or provided good cause. Therefore, the Board hearing request is considered withdrawn. See 38 C.F.R. § 20.704(d) (2014). A review of the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS) does not reveal any additional documents pertinent to the present appeal. The appeal is REMANDED to the VAMC in Huntington, West Virginia. VA will notify the Veteran if further action is required. REMAND The Veteran was taken by ambulance to the private emergency room of King's Daughter Medical Center in Ashland, Kentucky, on Thursday, September 30, 2010, after experiencing chest discomfort, arm pain, and shortness of breath. He reported that these symptoms had been in existence for approximately a week, but he decided to go to the private emergency room when the pain became more severe. He remained at King's Daughter Medical Center for nine days from September 30, 2010, through October 8, 2010. During his private hospitalization, he was diagnosed with coronary artery disease, stenosis of the left carotid artery, hypertension, peripheral arterial disease, peripheral vascular disease, and prior history of a stroke. He underwent several heart procedures during his private hospitalization, including left heart cardiac catheterization and a stent procedure. He was also scheduled to undergo an open heart coronary artery bypass graft, but this was not performed due to a risk of a stroke. He was discharged on October 8, 2010, and he was instructed to receive further follow-up treatment. There is no dispute that his private hospitalization was for a nonservice-connected disorder, as he is not service-connected for any disability at the present time. He has submitted an invoice for $110,586.95 from the private facility. VA authorized reimbursement for the Veteran's private hospitalization expenses at King's Daughter Medical Center for the time period from September 30, 2010, through October 4, 2010. Simply stated, the period of private hospitalization through October 4, 2010, is not at issue for reimbursement here, as VA has conceded this period of hospitalization was for a "medical emergency" and that VA facilities were not "feasibly available" during that time. However, VA did not authorize payment or reimbursement of his medical expenses for his private hospitalization at King's Daughter Medical Center for the time period from October 5, 2010, through October 8, 2010. The basis of the denial was that the Veteran was stable, but refused transfer to the VAMC in Huntington, West Virginia. In other words, his claim was only approved for authorization of payment up until the point the medical condition had stabilized, which in this case was determined to be October 5, 2010. The Veteran has appealed the VAMC's denial of reimbursement to the Board. The Veteran has requested reimbursement of these unauthorized medical expenses from King's Daughter Medical Center dated from October 5, 2010, through October 8, 2010. The Veteran has never argued that he was not stable for transfer to a VA facility on October 5, 2010, or that it would have been unsafe. Rather, he has indicated that he was informed he would be better off staying at the private facility because the VAMC in Huntington, West Virginia, was not equipped to perform the open heart surgery for which he was scheduled. See December 2010 Notice of Disagreement (NOD). In December 2010, the Chief of Fee Section from the Huntington, West Virginia, VAMC, after reviewing the Veteran's private hospital records discussed above, opined that the Veteran was only authorized reimbursement through October 4, 2010. There was no authorization after that point because the private facility assessed that the Veteran's condition was non-emergent, and the Veteran refused transfer to the VAMC. A private social worker progress note dated on October 4, 2010, and a VA transfer summarization note dated on October 4, 2010, supports this finding. There is no contrary medical opinion on file that the Veteran was not stable by October 5, 2010. When the Veteran receives treatment at a non-VA facility without prior authorization, such as the case here, there are two statutes that allow for claimants 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. In the instant case, because the treatment in question was rendered for nonservice-connected disability (coronary artery disease), the Veteran is not eligible for payment or reimbursement of "unauthorized" medical expenses incurred at a non-VA facility for a service-connected disability under 38 U.S.C.A. § 1728(a). Consequently, the only possible route to entitlement to unreimbursed medical expenses in this case stems from 38 U.S.C.A. § 1725, for treatment of a nonservice-connected disorder, pursuant to the Veterans Millennium Health Care and Benefits Act. See also 38 C.F.R. §§ 17.1000-17.1008 (2014). Effective October 10, 2008, the provisions of 38 U.S.C.A. § 1725 and § 1728 were amended. See Veterans' Mental Health and Other Care Improvements Act of 2008, Pub. L. No. 110-387, § 402, 122 Stat. 4110 (2008). This bill made various changes to Veteran's mental health care and also addresses other health care related matters. The changes are liberalizing in that they make reimbursement for medical expenses mandatory instead of discretionary, as well as expand the definition of "emergency treatment" beyond the point of stabilization. In addition, the changes apply the more liberal prudent layperson standard for determining whether an actual medical emergency existed under either 38 U.S.C.A. § 1725 and § 1728. The Board will apply the more liberal amended law in this case because the Veteran's private hospitalization occurred in October 2010, subsequent to the October 2008 effective date of the amendments. Specifically, the amended statutes expand the meaning of "emergency treatment" under section 1725(f)(1) and section 1728(c) by stating: (1) The term "emergency treatment" means medical care or services furnished, in the judgment of the Secretary-- (A) When Department or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable; (B) when such care or services are rendered in a medical emergency of such nature that a prudent layperson reasonably expects that delay in seeking immediate medical attention would be hazardous to life or health; and (C) Until-- (i) such time as the Veteran can be transferred safely to a Department facility or other Federal facility and such facility is capable of accepting such transfer; or (ii) such time as a Department facility or other Federal facility accepts such transfer if-- (I) 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 (II) 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. See 38 U.S.C.A. § 1725 (West 2002 & Supp. 2014) (emphasis added). In addition, effective January 20, 2012, VA regulations implementing 38 U.S.C.A. § 1725 and § 1728 were amended to conform to the statutory changes. See 76 Fed. Reg. 79,067-79,072 (December 21, 2011). The amendments affected the following Title 38 regulations: 38 C.F.R. §§ 17.120, 17.121, 17.1001, 17.1002, 17.1005, 17.1006, and 17.1008. With regard to the issue of stabilization, amended VA regulation provides the term "stabilized" means that no material deterioration of the emergency medical condition is likely, within reasonable medical probability, to occur if the Veteran is discharged or transferred to a VA or other Federal facility that VA has an agreement with to furnish health care services for Veterans. 38 C.F.R. § 17.1001(d) (2014). With regard to the issue of stabilization, regulation provides that VA will not approve claims for payment or reimbursement of the costs of emergency treatment not previously authorized for any period beyond the date on which the medical emergency ended. For this purpose, VA considers that an emergency ends when the designated VA clinicians at the VA facility has determined that, based on sound medical judgment, a Veteran who received emergency treatment: (1) could have been transferred from the non-VA facility to a VA medical center (or other Federal facility that VA has an agreement with to furnish health care services for Veterans) for continuation of treatment, or (2) could have reported to a VA medical center (or other Federal facility that VA has an agreement with to furnish health care services for Veterans) for continuation of treatment. 38 C.F.R. § 17.1005(b) (2014). However, claims for payment or reimbursement of the costs of emergency treatment not previously authorized may be approved for continued, non-emergent treatment (that is, beyond the point of stabilization), only if: (1) the non-VA facility notified VA at the time the Veteran could be safely transferred to a VA facility (or other Federal facility that VA has an agreement with to furnish health care services for Veterans) and the transfer of the Veteran was not accepted, and (2) the non-VA facility made and documented reasonable attempts to request transfer of the Veteran to VA (or request transfer of the Veteran to VA (or to another Federal facility that VA has an agreement with to furnish health care services for Veterans), which means the non-VA facility contracted either the VA Transfer Coordinator, Administrative Officer of the Day, or designated staff responsible for accepting transfer of patients at a local VA (or other Federal facility) and documented such contact in the Veteran's progress/physicians' notes, discharge summary, or other applicable medical record. 38 C.F.R. § 17.1005(c) (2014). Finally, under VA regulation, if a stabilized Veteran who requires continued non-emergency treatment refuses to be transferred to an available VA facility (or other Federal facility that VA has an agreement with to furnish health care services for Veterans), VA will make payment or reimbursement only for the expenses related to the initial evaluation and the emergency treatment furnished to the Veteran up to the point of refusal of transfer by the Veteran. 38 C.F.R. § 17.1005(d) (2014). In short, under the new version of 38 U.S.C.A. § 1725, effective October 10, 2008, and its implementing regulation, 38 C.F.R. § 17.1005, VA is authorized to make payment beyond the point of stabilization if certain criteria are met. The public policy behind the change in law is that, if VA fails to promptly transfer the Veteran to a VA facility upon request once he has stabilized, it is unjust to make the Veteran liable for additional expense at the non-VA facility due to no fault of his own. As to stability in this case, in December 2010, the Chief of Fee Section from the Huntington, West Virginia, VAMC, after reviewing the Veteran's private hospital records discussed above, opined that the Veteran was only authorized reimbursement through October 4, 2010. There was no authorization after that point because the private facility assessed that the Veteran's condition was non-emergent, and the Veteran refused transfer to the VAMC. A private social worker progress note dated on October 4, 2010, and a VA transfer summarization note dated on October 4, 2010, support this finding. There is no contrary medical opinion on file that the Veteran was not stable by October 5, 2010. Upon review, the Board finds that additional development of the evidence is required. First, it does not appear that the Veteran has been provided proper Veterans Claims Assistance Act of 2000 (VCAA) notice in connection with the unauthorized medical expense reimbursement claim. The law requires that VA notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In the present case, the December 2010 and December 2011 VCAA notice letters provided to the Veteran were inadequate. Neither VCAA letter discussed the criteria for "stabilization" and the conditions for payment beyond the point of stabilization pursuant to 38 U.S.C.A. § 1725(f)(1)(C) (effective October 2008) and 38 C.F.R. §§ 17.1001(d), 17.1005(b), (c), (d) (effective January 2012). Second, VA law provides that a Statement of the Case (SOC) issued to a claimant must be complete enough to allow the claimant to present his or her argument before the Board and must contain a summary of the applicable laws and regulations with appropriate citations and a discussion of how such laws and regulations affect the determination. 38 U.S.C.A. § 7105(d) (West 2002); 38 C.F.R. § 19.29 (2014). In this case, the December 2011 SOC did not include a citation and discussion of the provisions for "stabilization" and for payment beyond the point of stabilization - 38 U.S.C.A. § 1725(f)(1)(C) (effective October 2008) and 38 C.F.R. §§ 17.1001(d), 17.1005(b), (c), (d) (effective January 2012). To ensure due process, on remand, the VAMC should issue a supplemental statement of the case (SSOC), which includes citation to the relevant laws and regulations and adjudicates the issue of stabilization and payment beyond the point of stabilization for the Veteran's unauthorized medical expenses claim under 38 U.S.C.A. § 1725(f)(1)(C). The Board cannot consider the stabilization issue for payment or reimbursement for unauthorized medical expenses of a nonservice-connected disability without prior adequate consideration by the agency of original jurisdiction (AOJ), as this would be prejudicial to the Veteran. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Accordingly, the case is REMANDED for the following action: 1. The VAMC should send the Veteran a VCAA notice letter notifying him of (1) any information or lay or medical evidence that is necessary to substantiate his private medical expenses claim for a nonservice-connected condition under the amended/revised version of § 1725, (2) the information or evidence that he should provide; and (3) the information or evidence VA will attempt to obtain on his behalf. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). This VCAA letter should specifically address the term "stabilization" and the conditions for payment beyond the point of stabilization under 38 U.S.C.A. § 1725(f)(1)(C) (effective October 2008) and 38 C.F.R. §§ 17.1001(d), 17.1005(b), (c), (d) (effective January 2012)). 2. When the development requested has been completed, the VAMC should review the unauthorized medical expenses claim for the Veteran's private hospitalization from October 5, 2010, through October 8, 2010, on the basis of additional evidence. If the benefit sought is not granted, the Veteran and any representative should be furnished a SSOC and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. This SSOC should contain citation and discussion of the relevant provisions for "stabilization" and the conditions for payment beyond the point of stabilization - 38 U.S.C.A. § 1725(f)(1)(C) (effective October 2008), pursuant to the Veterans Millennium Health Care and Benefits Act, and 38 C.F.R. §§ 17.1001(d), 17.1005(b), (c), (d) (effective January 2012)). Under the new law effective October 10, 2008, VA is authorized to make payment beyond the point of stabilization if certain criteria are met. That is, under the new law, the definition of "emergency treatment" has been liberalized. The Veteran 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. 2014). _________________________________________________ J.W. ZISSIMOS 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) (2014).