Citation Nr: 1544917	
Decision Date: 10/21/15    Archive Date: 10/29/15

DOCKET NO.  14-33 115	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Portland, Oregon


THE ISSUE

Entitlement to payment or reimbursement of unauthorized medical expenses incurred at various facilities in the State of Idaho from July 25, 2013 to September 10, 2013.

(The issues of the propriety of the reduction of his evaluation for a right abdominal scar and increased evaluation claims for his right abdominal scar, left ankle, left knee, left hip, and tinea unguium of the bilateral feet will be the subject of a separate decision.)


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

M. Peters, Counsel

INTRODUCTION

The Veteran had active duty service from May 2005 to March 2008.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a several October and November 2013 letters of determination by the Department of Veterans Affairs (VA) Medical Center (MC), in Portland, Oregon.  The Veteran timely appealed the above issue.


FINDING OF FACT

Payment or reimbursement of unauthorized medical expenses incurred at various facilities in the State of Idaho from July 25, 2013 to September 10, 2013 is barred as a matter of law.


CONCLUSION OF LAW

The criteria for establishing eligibility for reimbursement of unauthorized medical expenses incurred at various facilities in the State of Idaho from July 25, 2013 to September 10, 2013, have not been met.  38 U.S.C.A. §§ 1703, 1710(h), 1725, 1728, 5107 (West 2014); 38 C.F.R. §§ 3.102, 17.52, 17.53, 17.54, 17.120, 17.121, 17.1002 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015).  

Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.  VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

Here, the Veteran was sent a letter in November 2013 that provided information as to what evidence was required to substantiate the claim herein decided and of the division of responsibilities between VA and a claimant in developing an appeal.  The letter also explained what type of information and evidence was needed to establish a disability rating and effective date.  Accordingly, no further development is required with respect to the duty to notify.

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination.  Moreover, his statements and those of his mother in support of the claim are of record.  The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim herein decided.  

For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Analysis

In the absence of prior appropriate authorization under 38 C.F.R. §§ 17.53 and 17.54, in order to be entitled to payment or reimbursement of unauthorized medical expenses incurred at a non-VA facility, a claimant must show:

(a) The care and services rendered were either:

(1) for an adjudicated service-connected disability, or

(2) for a nonservice-connected disability associated with and held to be aggravating an adjudicated service-connected disability, or

(3) for any disability of a veteran who has a total disability, permanent in nature, resulting from a service-connected disability, or

(4) for any injury, illness, or dental condition in the case of a veteran who is participating in a rehabilitation program and who is medically determined to be in need of hospital care or medical services for reasons set forth in 38 C.F.R. § 17.47(i) (formerly § 17.48(j)); and, 

(b) The services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health; and, 

(c) No VA or other Federal facilities were feasibly available and an attempt to use them beforehand would not have been reasonable.  

38 U.S.C.A. § 1728; 38 C.F.R. § 17.120.  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); see also Melson v. Derwinski, 1 Vet. App. 334, 337 (the use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met).

With regards to the Veteran's eligibility under 38 U.S.C.A. § 1728, the Board notes that the Veteran is not currently service connected for a psychiatric disability, as that claim was denied in an August 2015 rating decision.  As will be discussed in more detail below, the Veteran's treatment from July 25, 2013 through September 10, 2013 at issue in this case is for psychiatric treatment; the treatment rendered additionally was not due to any vocational rehabilitation program, nor has his psychiatric disorder been found to be due to or aggravated by any service-connected disabilities.  Therefore, the Board finds that the Veteran is not eligible for payment for unauthorized medical expenses under 38 U.S.C.A. § 1728.

Nonetheless, the Veterans Millennium Health Care and Benefits Act also provides general authority for reimbursement for the reasonable value of emergency treatment furnished in a non-VA facility to those Veterans who are active VA health-care participants (i.e., enrolled in the annual patient enrollment system and recipients of a VA hospital, nursing home, or domiciliary care under such system within the last 24-month period) and who are personally liable for such non-VA treatment and not eligible for reimbursement under the provisions of 38 U.S.C.A. 
§ 1728.  38 U.S.C.A. § 1725; 38 C.F.R. §§ 17.1000-1008.

Payment or reimbursement for emergency services for nonservice-connected conditions in non-VA facilities may be authorized under 38 U.S.C.A. § 1725 and 38 C.F.R. §§ 17.1000-1008.  To be eligible for reimbursement under this authority, the veteran has to satisfy all of the following 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 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 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 that 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; and,

(i) The veteran is not eligible for reimbursement under 38 U.S.C.A. § 1728 for the emergency treatment provided.

38 C.F.R. § 17.1002 (2015).

In addition, a veteran is required to file a claim within 90 days of the latest of the following: (1) July 19, 2001; (2) the date that the veteran was discharged from the facility that furnished the emergency treatment; (3) the date of death, but only if the death occurred during the stay in the facility that included the provision of the emergency treatment; or, (4) the date the veteran finally exhausted, without success, action to obtain payment or reimbursement for the treatment from a third party.  38 C.F.R. § 17.1004.

Turning to the evidence of record, the Board notes that the Veteran's treatment for his psychiatric disorder began on July 25, 2013, in Moscow, Idaho, when the Moscow Police Department responded to the University of Idaho and found the Veteran with his car parked on the sprint turf practice field.  

According to the Pre-Hospital Care Report furnished by the Moscow Volunteer Fire Department, who later provided the Veteran medical transportation via ambulance to St. Joseph's Regional Medical Center in Lewiston, Idaho, indicated that when the Veteran was questioned by the police, he became agitated and aggressive.  After the police contacted the Veteran's parents, who arrived on scene later, the Veteran eventually took some of his medication which he had stopped taking.  The Veteran was eventually detained by police and medically held for observation at Gritman Medical Center; the Moscow Fire Department subsequently transported the Veteran from Gritman Medical Center to St. Joseph's Regional Medical Center On July 26, 2013, where he was involuntarily held in a psychiatric ward at that facility until August 15, 2013.  It further appears that on August 15, 2013, the Veteran was transferred by the Latah County Sheriff's Department to State Hospital North in Orofino, Idaho, where he remained until approximately September 10, 2013, per the Veteran's reports.  

Medical records from St. Joseph's Regional Medical Center corroborate this timeline of events; specifically, a Mental Health Triage note dated July 26, 2015 indicates that the Veteran parked his car on the University of Idaho field and he was brought into the emergency room by the police; he was transferred to St. Joseph's Regional Medical Center on an involuntary hold after being non-cooperative and "out of control at the hospital," necessitating that the police be called back in.  It appears that on August 15, 2015, the Veteran was transferred by Latah County Sheriff's Department ambulance to State Hospital North for further treatment at that facility.  

Prior to this incident, the Veteran had been treated for his psychiatric disorder by the Spokane VA Medical Center on July 22, 2013.  In an August 28, 2013 VA treatment note, it appears that the Veteran was still psychiatrically admitted to State Hospital North in Orofino, Idaho; the Veteran's mother contacted VA at that time to get the Veteran reassigned to a different VA psychiatrist, or a private psychiatrist in their local community.  

The Veteran filed his claim for payment or reimbursement of medical expenses regarding the ambulance transportation by the Moscow Fire Department and treatment costs associated with his institutionalization at St. Joseph's Regional Medical Center and State Hospital North.  He submitted a November 2013 bill from St. Joseph's Regional Medical Center which documented charges in the amount of $56,416.38 related to his treatment from July 26, 2013 to August 15, 2013; he also submitted a bill from the Moscow Fire Department in the amount of $648.00 for costs incurred on July 26, 2013.  The Board notes that the November 2013 bill from St. Joseph's Regional Medical Center did not indicate that the Veteran owed any money at that time; likewise, there is no indication in the record that the Veteran owes the Moscow Fire Department or State Hospital North any money related to their care of the Veteran.  

In the Veteran's December 2013 notice of disagreement and February 2014 substantive appeal, VA Form 9, the Veteran argued that VA should be liable for payment or reimbursement of medical expenses because his VA psychiatrist was negligent in treating him on July 22, 2013, which led to his institutionalization 4 days later.  The Veteran has also submitted several statements from his mother to this effect.  

The Veteran has additionally argued that VA was not feasibly available because Spokane VA Medical Center was 90 miles away from the place of the incident, and that he was in an emergent condition.  He further argues that he was clearly enrolled with VA for treatment purposes and had no other third-party insurance to cover the expenses.  

Based on the foregoing evidence, the Board finds that payment for any medical expenses incurred between July 25, 2013 and September 10, 2013, cannot be covered by VA.  Specifically, 38 U.S.C.A. § 1710(h) states, "Nothing in this section requires the Secretary to furnish care to a Veteran to whom another agency of Federal, State, or local government has a duty under the law to provide care in an institution of such government."  

In this case, the Veteran was detained and under the custody and care of the local and state government officials of Moscow, Idaho and the State of Idaho.  He was detained and medically held for observation at Gritman Medical Center by the Moscow Police Department, before being transferred by Moscow Fire Department to St. Joseph's Regional Medical Center because of a state-instituted involuntary hold.  Eventually, the Veteran was transferred to from St. Joseph's Regional Medical Center to State Hospital North by the Latah County Sheriff's Department.  Throughout the entire period from July 25, 2013 to September 10, 2013, the Veteran was under the custody and care of local or state officials and the medical care rendered to him was their duty under the law.  Accordingly, VA is unable to pay for or reimburse any medical expenses associated with the Veteran's claim in this case as a matter of law.  See 38 U.S.C.A. § 1710(h); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

However, even if the Board were to determine that that VA could be liable for payment or reimbursement of medical expenses in this case, the Board notes that it does not appear that the Veteran would otherwise qualify for payment or reimbursement of medical expenses under 38 U.S.C.A. § 1725 for the series of treatment facilities at issue in this case.  

First, the Board notes that the evidence of record does not document that the Veteran is personally liable for any payment of medical expenses to the Moscow Fire Department, St. Joseph's Regional Medical Center, or State Hospital North, or that he has paid any amount to those facilities in conjunction with treatment he received at those facilities during the period of July 25, 2013 to September 10, 2013.

Secondly, it does not appear that the Veteran was in an emergent condition during that period of treatment.  Instead, the Veteran was detained and taken to the emergency room after he was aggressive and agitated following an interaction with the police; he was taken to the emergency room at that time, not due to a emergent condition but rather because he was being medically held for observation by law enforcement officials.  Such does not rise to the level that a reasonably prudent layperson would necessarily feel that failure to seek medical treatment at that time would be a risk to life or health; rather, it appears that the Veteran was aggressive and belligerent with law enforcement officials due to a psychotic episode, and that those officials determined that he should be medically held for further observation before being released from custody.  The evidence of record at this time does not demonstrate that the Veteran was found to have been a danger to himself or others, at that time if not otherwise engaged with law enforcement.  The Veteran was merely confused and thought his car had been stolen, which was the precipitating event that began the Veteran's interaction with law enforcement officials on July 25, 2013.

Moreover, the Board questions whether VA was not feasibly available to treat the Veteran, particularly since he was transferred approximately 40 miles to Lewiston, Idaho on July 26, 2013, when the Spokane VA Medical Center was only approximately 80 miles in the opposite direction.  Furthermore, it does not appear that the Veteran or his parents notified VA of the Veteran's condition or Gritman Medical Center of VA's previous care in this case; there is no evidence of a request for transfer to a VA facility after the initial treatment at the emergency facility at Gritman Medical Center was completed.  

Additionally, the Board notes that the Veteran was treated by the psychiatric ward at St. Joseph's Regional Medical Center and State Hospital North, and not by those facilities' emergency departments; thus, the Board questions whether those facilities' expenses would qualify for payment or reimbursement under 38 U.S.C.A. § 1725 in any case.  

Finally, it appears to the Board that the Veteran may have had third-party insurance or a third-party payee (state or local governments) which may be liable for the whole or part of the amount owed by the Veteran in this case.  

Accordingly, the Board significantly questions the viability of any payment or reimbursement claim by the Veteran for unauthorized medical expenses in this case even if VA was not barred by a matter of law from payment or reimbursement of unauthorized medical expenses incurred at various treatment facilities from July 25, 2013 to September 10, 2013, in this case.  See 38 U.S.C.A. §§ 1710(h), 1725, 1728; 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120, 17.121, 17.1002; Sabonis, supra.  

In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).


ORDER

Entitlement to payment or reimbursement of unauthorized medical expenses incurred at various facilities in the State of Idaho from July 25, 2013 to September 10, 2013, is denied.



____________________________________________
THOMAS H. O'SHAY
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs