Citation Nr: 1620785 Decision Date: 05/23/16 Archive Date: 06/02/16 DOCKET NO. 16-12 067 ) DATE ) ) On appeal from the Department of Veterans Affairs Non-VA Care Office in Lincoln, Nebraska THE ISSUE Entitlement to additional payment or reimbursement for the costs of private medical expenses incurred for unauthorized service provided at a non-VA medical facility from August 19, 2012, to August 21, 2012. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD Anthony Flamini, Counsel INTRODUCTION The Veteran served on active duty from June 1956 to March 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 decision of the Department of Veterans' Affairs (VA) Non-VA Care Office in Lincoln, Nebraska. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran is service connected for bilateral hearing loss and tinnitus only (with a 100 percent permanent and total rating), and is not participating in a rehabilitation program. 2. VA did not provide prior authorization for the medical services provided from August 19, 2012, to August 21, 2012. 3. The payment of expenses for treatment received in the emergency room at the non-VA medical facility has already been approved. 4. Regarding the treatment received from August 19, 2012, to August 21, 2012 subsequent to discharge from the emergency room, the Veteran's condition was stabilized, he could be safely transferred, and VA facilities were available to provide the appellant with the type of services provided by the private care provider. 5. The services rendered at Saint Francis Medical Center following the Veteran's emergency room intake assessment, at which time he was deemed stable, were not rendered in a medical emergency of such nature that delay to allow transfer would have been hazardous to life. CONCLUSION OF LAW The criteria for additional payment or reimbursement of unauthorized medical expenses incurred from August 19, 2012, to August 21, 2012, have not been met. 38 U.S.C.A. §§ 1725, 1728 (West 2014); 38 C.F.R. §§ 17.54, 17.120, 17.1000-1008 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA must assist a claimant at the time he or she files a claim for benefits. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. § 3.159 (2015). As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). There is no indication in these provisions, however, that Congress intended to revise the unique, specific claim provisions of 38 U.S.C. Chapter 17. 38 C.F.R. §§ 17.120-17.132; Barger v. Principi, 16 Vet. App. 132 (2002). In this regard, the provisions of Chapter 17 of 38 U.S.C.A., and 38 C.F.R. Part 17, contain their own notice requirements. Regulations at 38 C.F.R. § 17.120-32 discuss the adjudication of claims for reimbursement of unauthorized medical expenses. A claimant has the duty to submit documentary evidence establishing the amount paid or owed, an explanation of the circumstances necessitating the non-VA medical treatment, and "other evidence or statements that are deemed necessary and requested for adjudication of the claim." 38 C.F.R. § 17.124. When a claim for payment/reimbursement of unauthorized medical expenses is disallowed, VA is required to notify the Veteran of its reasons and basis for denial, his or her appellate rights, and to furnish all other notifications or statements required by Part 17 of Chapter 38. 38 C.F.R. § 17.132. Here, a September 2012 letter from the Non-VA Care Office explained to the Veteran the basis for the denial of the claim for the benefits sought and notified him of his appellate rights. There is no indication that there is any relevant evidence outstanding in this claim. The Board finds the current record sufficient to make a decision on the claim. As the issue involves a prudent lay person's finding of emergency, rather than a medical determination, the Board finds that a medical opinion is not necessary to decide the claim. 38 U.S.C.A. § 1725(f)(1); Swinney v. Shinseki, 23 Vet. App. 257 (2009). Hence, the Board may address the merits of the appeal without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). A veteran may be eligible for payment or reimbursement for medical services not previously authorized in accordance with 38 U.S.C.A. §§ 1725 or 1728. See Hennessey v. Brown, 7 Vet. App. 143 (1994). Entitlement to payment or reimbursement of medical expenses incurred at a non-VA facility under 38 U.S.C.A. § 1728 requires that: (a) the care and services rendered were for an adjudicated service-connected disability, for a non-service-connected disability associated with and held to be aggravating an adjudicated service-connected disability, for any disability of a veteran who has a total disability, permanent in nature, resulting from a service-connected disability, or 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) ; 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 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. 38 U.S.C.A. § 1728; 38 C.F.R. § 17.120; see also Zimick v. West, 11 Vet. App. 45, 49 (1998). The Veterans Millennium Health Care and Benefits Act (VMHCBA) 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. Pursuant to 38 C.F.R. § 17.1002, payment or reimbursement under 38 U.S.C.A. § 1725 for emergency treatment for non-service-connected disabilities in non-VA facilities is only allowed if all of the following criteria 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 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 was 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 function, 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) 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 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 for a denial of payment); (g) 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 (h) The veteran is not eligible for reimbursement under 38 U.S.C. § 1728 for the emergency treatment provided. 38 C.F.R. § 17.1002. Pursuant to 38 U.S.C.A. § 1703(a) (West 2002), "When [VA] facilities are not capable of furnishing . . . the care or services required, the Secretary, as authorized in [38 U.S.C.A. § 1710 or 1712], may contract with non-Department facilities in order to furnish" certain care, including: "[h]ospital care or medical services for the treatment of medical emergencies which pose a serious threat to the life or health of a Veteran receiving medical services in a Department facility . . . until such time following the furnishing of care in the non-Department facility as the Veteran can be safely transferred to a Department facility." 38 U.S.C.A. § 1703(a)(3) (West 2002); 38 C.F.R. § 17.52. 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 clinician 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) 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) . 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) . As a preliminary matter in adjudicating a claim for reimbursement of medical expenses, the Board must make a factual determination as to whether VA gave prior authorization for the non-VA medical care that the veteran received in a private facility. See 38 U.S.C.A. § 1703(a); Smith v. Derwinski, 2 Vet. App. 378 (1992); see also 38 C.F.R. § 17.54. This is a factual, not a medical, determination. Similes v. Brown, 6 Vet. App. 555 (1994). The admission of a veteran to a non-VA hospital at VA expense must be authorized in advance. In the case of an emergency that existed at the time of admission, an authorization may be deemed a prior authorization if an application, whether formal or informal, by telephone, telegraph, or other communication, made by the veteran or by others on his/her behalf is dispatched to VA for veterans in the 48 contiguous States and Puerto Rico, within 72 hours after the hour of admission, including in the computation of time Saturday, Sunday, and holidays. 38 C.F.R. § 17.54. In this case, the Veteran is seeking entitlement to partial payment or reimbursement from VA concerning medical expenses incurred for services rendered at Saint Francis Medical Center in Grand Island, Nebraska, from August 19, 2012, to August 21, 2012. In August 2012, the Nebraska Western Iowa Health Care System determined that VA had authority to authorize payment only for the Veteran's emergency room treatment on the night of August 19, 2012; however, payment was denied for all subsequent in-patient charges dated from August 19, 2012, to August 21, 2012, on the basis that VA facilities were feasibly available to provide the care rendered. Treatment records from Saint Francis Medical Center dated on August 19, 2012, indicated that the Veteran presented to the emergency department with complaints of irregular heart rhythm, elevated blood pressure, chest pain, shortness of breath, and cold symptoms at approximately 10:55pm. At that time, these symptoms had been present for 3 hours. The Veteran arrived by car. By the time of his intake assessment, conducted by a registered nurse, the Veteran's chest pain had subsided and he was deemed to be in stable condition. He was not seen by a cardiologist until the morning of August 20, 2012, and underwent dual chamber pacemaker placement during the afternoon of August 20, 2012. The Veteran reported in his October 2012 notice of disagreement that he informed several Saint Francis Medical Center staff members that he was "with the VA" upon his arrival to the emergency department. The Veteran has also claimed that a VA provider instructed him to go to the nearest emergency room if he was experiencing chest pain over the weekend, although there is no documentation of any such instruction. There is no evidence that the Veteran contacted VA at any time prior to his treatment at Saint Francis Medical Center on from August 19, 2012, to August 21, 2012, and he has not indicated that VA provided specific authorization prior to his non-VA treatment on those dates. VA was not notified of the Veteran's admission to and treatment at Saint Francis Medical Center until August 21, 2012, when the Veteran was about to be discharged following his dual chamber pacemaker placement. Specifically, a VA note dated at 10:56am on August 21, 2012, indicated that the Veteran was now requesting transfer to VA prior to his discharge from Saint Francis Medical Center because he was concerned about payment; the note additionally indicated that there was no record of VA being contacted for transfer on August 19, 2012. Since the Veteran had a 100 percent permanent and total evaluation for his service-connected hearing loss, it was determined that he was eligible for VA payment up to the point of stability or transfer under 38 U.S.C.A. § 1728. As for whether the Veteran is entitled to additional payment or reimbursement for the expenses incurred due to his unauthorized treatment, the Board notes that he is only service connected for bilateral hearing loss and tinnitus, and there is no evidence that he is a participant in a rehabilitation program. The evidence does not reflect, and the Veteran has not asserted, that his admission to and treatment at Saint Francis Medical Center was in any way related to his service-connected hearing loss or tinnitus. As discussed above, the Veteran's emergency department treatment on August 19, 2012, was reimbursed pursuant to 38 U.S.C.A. § 1728 on the basis that he had a total disability, permanent in nature, resulting from a service-connected disability (hearing loss). However, 38 U.S.C.A. § 1728 only authorizes payment or reimbursement of medical expenses incurred at a non-VA facility when the services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health and when VA or other Federal facilities were 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. Here, the services rendered at Saint Francis Medical Center following the Veteran's emergency room intake assessment, at which time he was deemed stable, were not rendered in a medical emergency of such nature that delay would have been hazardous to life. A VA physician reviewed the records and in April 2013 offered an assessment that the Veteran was stable for transfer to VA. Moreover, VA facilities were feasibly available. Therefore, reimbursement for his private medical expenses rendered after his emergency room treatment on August 19, 2012, under 38 U.S.C.A. § 1728 is not warranted. 38 U.S.C.A. § 1728; C.F.R. § 17.120. With regard to whether the Veteran is entitled to payment or reimbursement under the VMHCBA pursuant to 38 U.S.C.A. § 1725, the Board finds that the treatment received from August 19, 2012, to August 21, 2012, after the Veteran was deemed to be in stable condition in the emergency department, was not for a condition of such nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. The treatment received on that date was for chest pain which had been present for 3 hours. The Veteran was deemed to be stable when he was assessed at the Saint Francis Medical Center emergency department, and his chest pain had subsided by that time. Furthermore, his subsequent care and pacemaker placement was not of an emergent nature, as the Veteran was not seen by a cardiologist until the next morning and did not undergo pacemaker placement until the next afternoon. A cardiac consultation note dated the morning of August 20, 2012, indicated that the Veteran denied any chest pain, palpitations, dizziness, sweating, or cold sweats; rather, the Veteran stated that "he just did not feel right. He has no other way to describe the feeling, it was just different, so came into the ER to check out his [atrial fibrillation] and make sure that he was not having an exacerbation of or possible clot due to the fact that he was not anticoagulated." In addition, as noted above, a VA physician reviewed the records and in April 2013 offered an assessment that the Veteran was stable for transfer to VA. Given the above facts, the Board finds that a reasonably prudent layperson would not have believed that the symptoms for which the Veteran sought treatment required additional emergency treatment beyond his initial emergency room visit on the night of August 19, 2012. In light of the above, the Board finds that the criteria for payment or reimbursement of the unauthorized medical expenses incurred from August 19, 2012, to August 21, 2012, under the VMHCBA have not been met. There is no other avenue for the Veteran to pursue reimbursement. Hence, the appeal is denied. See 38 U.S.C.A. § 1725; 38 C.F.R. § 17.1002. ORDER Entitlement to partial payment or reimbursement for the costs of private medical expenses incurred for unauthorized service provided at a non-VA medical facility from August 19, 2012, to August 21, 2012, is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs