Citation Nr: 1621816 Decision Date: 06/01/16 Archive Date: 06/13/16 DOCKET NO. 11-28 140 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) North Florida / South Georgia Veterans Health System THE ISSUE Entitlement to payment or reimbursement for unauthorized medical expenses incurred at Satilla Regional Medical Center on June 6, 2011. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from June 1966 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 administrative decision by the North Florida / South Georgia Veterans Health System in Gainesville, Florida. The Veterans Health Administration (VHA) Central Office currently has jurisdiction over the Veteran's medical file. The Veteran's September 2011 substantive appeal, VA Form 9, requested a hearing before the Board at a local VA office and a hearing was scheduled in May 2015. In a May 2015 statement, however, the Veteran withdrew his hearing request. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA and Veteran's Benefits Management System (VBMS) systems to ensure review of the totality of the evidence. FINDINGS OF FACT 1. At the time of the Veteran's treatment at Satilla Regional Medical Center, he was service connected for tinnitus (evaluated as 10 percent disabling) and a left ear hearing loss disability (evaluated as noncompensable), both effective from November 23, 2009. 2. On June 6, 2011, the Veteran presented to Satilla Regional Medical Center with a several day history of progressive back pain with brief chest pain the previous day, but no current chest pain. 3. A prudent layperson would have reasonably expected that delay in seeking immediate medical attention on June 6, 2011, would have been hazardous to life or health. 4. A VA or other federal facility/provider was not feasibly available to provide the necessary medical care. CONCLUSION OF LAW The criteria for payment or reimbursement of unauthorized, non-VA medical expenses incurred on June 6, 2011, have been met. 38 U.S.C.A. § 1725 (West 2014); 38 C.F.R. §§ 17.1000-17.1002 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran has filed a claim for payment or reimbursement for the cost of unauthorized private medical expenses incurred at Satilla Regional Medical Center on June 6, 2011. At the time of the Veteran's treatment at Satilla Regional Medical Center, he was service connected for tinnitus (evaluated as 10 percent disabling) and a left ear hearing loss disability (evaluated as noncompensable), both effective from November 23, 2009. In February 2000, the Veteran sought treatment with VA for a one month history of right arm pain. He denied shortness of breath, but described substernal chest pain and occasional palpitations. The assessment was hypertension, rule of gastroesophageal reflux disease, and right arm pain. A March 2000 VA treatment record included the Veteran's report of a recent stroke that had been diagnosed at a local hospital during treatment for high blood pressure. He also reported some left arm pain, left upper quadrant pain, and shortness of breath the previous night. Subsequently, the Veteran had ongoing treatment with VA for various problems. A June 6, 2011, VA telephone encounter note indicated that the Veteran's wife called reporting a one-week history of back pain that resulted in difficulty even with walking. The Veteran reported back pain that was a 7 to 8 out of 10 and would sometimes spread to the chest and down the leg. He had not experienced chest pains that day, but had the previous night. The pain in the back was above the beltline and was ripping and tearing in nature. The VA representative advised the Veteran to go to the nearest emergency room and to consider calling an ambulance. The Veteran's wife responded by stating, "we'll take care of it on this end" and hung up the phone. The resulting disposition report noted that there was a concern of aortic thoracic dissection, with a nursing recommendation that this was an emergency. A subsequent June 6, 2011, treatment record from the Satilla Regional Medical Center emergency department indicated that the Veteran reported low back pain for a few days with slow onset. The symptoms were moderate, dull, and constant and improved with rest. The Veteran also reported some chest pain and old low back pain that made it difficult to walk. There had been some brief chest pain the previous day, but none now. Life or limb threatening diagnoses that were considered were myocardial infarction, coronary artery disease, pulmonary embolus, thoracic aorta dissection, pneumothorax, and other disorders. On examination, however, the medical professional determined that there were no symptoms or objective findings that were life or limb threatening and he was found to be stable for transfer from the emergency room. CT scans of the brain, abdomen and pelvis were negative for life threatening problems. Chest x-rays were normal. The June 2011 discharge instructions from Satilla Regional Medical Center noted diagnoses of back pain and degenerative joint disease, doubtful abdominal compartment syndrome (ACS) / aneurysm. The Veteran received a bill from Satilla Regional Medical Center for $7,022.20 for the services on June 6, 2011. The information received all indicated that the Veteran's sole insurance provider was VA. The Veteran sought reimbursement for the medical expenses from VA and the claim was denied in July 2011. In his July 2011 notice of disagreement, the Veteran stated that on June 6, 2011, he called Phone Advice (Telcare) at the VA Medical Center (VAMC) in Gainesville, Florida. He reported that he was having excruciating pain his lower back, as well as pain in his chest. The medical professional on the phone asked whether he was having trouble breathing and told the Veteran to go to the nearest emergency room because he might have an aneurysm. She suggested that the Veteran not come to the VA due to the possibility of a more serious condition and recommended that he go to the nearest hospital. Based on this advice, he and his wife went to Satilla Regional Medical Center. In his September 2011 substantive appeal (VA Form 9), the Veteran's wife reiterated the Veteran's previous arguments about the reason for going to Satilla Regional Medical Center. She indicated that they had called to schedule an appointment with a VA doctor, but were transferred to the medical professional who recommended that the Veteran go to a local emergency room. The Veteran's wife stated that the VA medical professional scared them and they had followed instructions "because I did not want my husband to die." She indicated that the Veteran had been undergoing tests, but that they had no discovered the cause of his complaints and that he still was dealing with significant pain. 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 (2015). In this case, while the Veteran has not explicitly claimed that his care at Satilla Regional Medical Center was authorized in advance, he has asserted that a VA nurse advised him to go to the nearest emergency room. The Court of Appeals for Veterans Claims (Court), however, has determined that "the advice of a doctor to go to a non-VA hospital is not the specific type of authorization contemplated in the regulation." Smith v. Derwinski, 2 Vet. App. 378, 379 (1992). Although the specific regulation in Smith, 38 C.F.R. § 17.50d(a), has since been amended, it was of similar content to the current 38 C.F.R. § 17.54. Based on the foregoing, the Board must conclude that prior authorization for the private medical treatment received on June 6, 2011, was not obtained pursuant to 38 C.F.R. § 17.54, and that payment is not warranted for expenses incurred in conjunction with that treatment under 38 U.S.C.A. § 1703 (West 2014) based on prior authorization. Nevertheless, under 38 U.S.C.A. § 1728(a) and 38 C.F.R. § 17.120, VA may reimburse veterans for unauthorized medical expenses incurred in non-VA facilities where: (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; (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. 38 U.S.C.A. § 1728(a) (West 2015); 38 C.F.R. § 17.120 (2015). All three statutory requirements must be met before the reimbursement may be authorized. Zimick v. West, 11 Vet. App. 45 (1998). As noted above, the Veteran is service-connected for tinnitus and a left ear hearing loss disability, but is not service-connected for a back or heart disability. The Veteran has not contended that his left ear hearing loss or tinnitus aggravated his back or chest problems. The Veteran does not have a total disability permanent in nature resulting from a service-connected disability for the purposes of 38 C.F.R. § 17.120(a)(3). The evidence does not suggest, nor has the Veteran contended, that he is participating in a rehabilitation program under 38 U.S.C.A. Chapter 31. Therefore, the threshold criteria for payment or reimbursement under the provisions of 38 U.S.C.A. § 1728 have not been met. Alternatively, to be eligible for payment or reimbursement for emergency services for nonservice-connected conditions in non-VA facilities under 38 U.S.C.A. § 1725 and the implementing regulations (38 C.F.R. §§ 17.1000-1008), all of the following conditions must be satisfied: (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 such provider 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 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 (2015). The above-noted criteria are conjunctive, not disjunctive; thus all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (noting the use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). Under § 1725, the definition of the term "emergency treatment" is defined as medical services furnished, in the judgment of the Secretary, (1) when Department or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable; (2) when such 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 (3) until such time as the Veteran can be transferred safely to a Department facility. 38 U.S.C.A. § 1725(f)(1)(B). A revision was made to § 1725 as to how long emergency treatment continued, once the definition of "emergency treatment" was met. Under the former version, treatment is considered emergent until the Veteran is transferred safely to a Department facility or other Federal facility and such facility is capable of accepting such transfer. Under the revised version, "emergency treatment" is continued until 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. The regulations do not require that a veteran's treatment actually be proven emergent from a purely medical standpoint in order to qualify for payment or reimbursement. Rather, it need be demonstrated only that the initial evaluation and treatment was 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, that is, placing the health of the individual in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. 38 C.F.R. § 17.1002(b); see also, Swinney v. Shinseki, 23 Vet. App. 257, 267 (2009). Initially, the Board notes that the evidence of record shows that the medical treatment was provided in a non-VA emergency room, that the Veteran had been enrolled in a VA health care system in the past two years prior to the June 2011 treatment, the claims file does not indicate that the he has any other insurance (as all billing information lists VA as his health insurance provider), and that he was personally liable for the cost of treatment. As to whether a medical emergency existed, the Board observes that the regulation indicates that an emergency exists if a prudent layperson would have reasonably expected that delay in treatment would have been hazardous to life or health. In that regard, the Board notes that the Veteran and his wife called a VA medical facility in an attempt to schedule an appointment, but on description of the Veteran's symptoms there was concern that he might have a heart-related condition and was advised to go to the nearest emergency room and should consider calling for an ambulance. The Veteran's wife has credibly related that this pronouncement from a VA medical professional scared her and that they complied with these directives because she did not want the Veteran to die. At the hospital the Veteran reported that he had ongoing back pain and chest pain the previous day, but not currently. Similar to the VA medical professional's initial assessment, the treatment providers at Satilla Regional Medical Center initially considered differential diagnoses that included thoracic aorta dissection, myocardial infarction, pulmonary embolus, pneumothorax and other serious issues. Based on the differential diagnoses, diagnostic testing was undertaken, including CT scans of the brain, abdomen, and pelvis and x-rays of the chest. Only after conducting these tests were significant, life-threatening disorders ruled out. Given that both VA and medical professionals treated the Veteran's symptoms as potentially hazardous to his life and health, the Board concludes that it was entirely reasonable for the Veteran and his wife to view his symptoms that same way. It was not until after speaking with a VA medical professional that they sought treatment at the private emergency room and based on the medical professional's concerns regarding the Veteran's condition his wife has credibly testified that they feared for his life. Based on the foregoing, the Board finds that a prudent layperson would have believed that a delay in seeking treatment would have been hazardous to the Veteran's health and that his emergency room visit on June 6, 2011 was emergent. Finally, the Board concludes that there was no VA facility that was feasibly available to the Veteran. The Board notes that Satilla Regional Medical Center is approximately 15 minutes from the Veteran's home, whereas the nearest VA medical facility is approximately 2 hours drive away. The VA medical professional recommended that they seek treatment at the nearest available emergency room and the Veteran and his wife prudently followed that advice. As such, the Board concludes that a VA facility was not feasibly available to the Veteran. In sum, the Board finds that it was reasonable and prudent for the Veteran to feel that a delay in seeking immediate medical attention would have been hazardous to his life or health and that a VA facility was not feasibly available to him. Accordingly, the Board concludes that the Veteran meets the criteria for payment or reimbursement of the unauthorized medical expenses resulting from the non-VA medical treatment on June 6, 2011. The benefit sought on appeal is granted. ORDER Entitlement to payment or reimbursement for unauthorized medical expenses incurred at Satilla Regional Medical Center on June 6, 2011, is granted. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs