Citation Nr: 1644497	
Decision Date: 11/25/16    Archive Date: 12/02/16

DOCKET NO.  13-05 070	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Veterans Health System in
North Florida/South Georgia 


THE ISSUE

Entitlement to payment or reimbursement for the costs of medical treatment provided at Flagler Hospital on May 8, 2012.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

E. Skiouris, Associate Counsel






INTRODUCTION

The appellant is a Veteran who served on active duty from August 1967 to March 1969.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2012 decision of the Department of Veterans Affairs North Georgia/South Florida Veterans Health System. The Veteran filed a timely notice of disagreement in June 2012.  The RO issued a statement of the case (SOC) in December 2012.  The Veteran subsequently perfected his appeal with a VA Form 9 in February 2013.     


FINDINGS OF FACT

1. The Veteran was treated at Flagler Hospital emergency department in the early morning hours of May 8, 2012, where he was treated for complaints of worsening abdominal pain that was sharp and across the entire abdomen, but which had improved markedly in the emergency department.  

2. The veteran was advised in a VA Telecare conversation shortly before he presented to Flagler Hospital that his response to questions indicated he would be treated sooner than most patients in an emergency room; that he needed to see a doctor now or his condition could worsen; and that he should consider calling an ambulance.  

3. The nearest available VA facility to the Veteran at the time he presented to the emergency department at Flagler Hospital on May 8, 2012 was more than 70 miles distant.  






CONCLUSION OF LAW

The requirements for payment or reimbursement of medical services provided by Flagler Hospital, May 8, 2012, have been met. 38 U.S.C.A. §§ 1725, 1728 (West 2014); 38 C.F.R. §§ 17.1000-17.1008, 17.120-17.121 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duty to Notify and Assist

VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159 (b). However, the provisions of Chapter 17 of 38 U.S.C. and 38 C.F.R. contain their own notice requirements. Regulations at 38 C.F.R. § 17.120-33 (2015) discuss the adjudication of claims for reimbursement of unauthorized medical expenses. According to 38 C.F.R. § 17.124 (2015), the Veteran 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." When a claim for reimbursement of unauthorized medical expenses is disallowed, VA is required to notify the claimant of its reasons and bases for denial, his or her appellate rights and to furnish all other notifications or statements required by Part 19 of Chapter 38. 38 C.F.R. § 17.132. VA complied with these provisions in this case. 

In June 2012, the Veteran was notified as to why his claim was denied. Although brief, the Veteran's subsequent comments have been responsive and he can reasonably be expected to understand what is needed to support his claim.  In this regard, a letter sent to the Veteran in December 2012, as well as a December 2012 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 claims for benefits, such as obtaining private medical records, and providing the Veteran with the opportunity for a hearing.  He has been afforded a meaningful opportunity to participate effectively in the processing of his claim. Consequently, the duties to notify and assist have been met. 

A Board hearing was requested and scheduled, however in July 2016 the Veteran submitted correspondence indicating he no longer wished to proceed with the hearing.  Therefore, the Board finds that his hearing request has been withdrawn.  See 38 C.F.R. § 20.704(e) (2015). 

Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).  Therefore, the Board finds that the duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal.

Laws and Regulations

Congress has authorized VA to reimburse Veterans for unauthorized emergency medical treatment in two separate statutes, 38 U.S.C.A. §§ 1725 and 1728. Specifically, § 1725 authorizes reimbursement for emergency treatment for eligible Veterans with non-connected disorders, and § 1728 authorizes reimbursement for emergency treatment for eligible Veterans with service-connected disabilities. These statutory provisions are implemented at 38 C.F.R. §§ 17.1000 -17.1008 for eligible Veterans with nonservice-connected disorders, and at 38 C.F.R. §§ 17.120 -17.121 for eligible Veterans with service-connected disabilities.

When VA facilities are not capable of furnishing the care or services required, the Secretary may contract with non-Department facilities in order to furnish certain care, including hospital 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); 38 C.F.R. § 17.52.

A claim for payment or reimbursement of services not previously authorized may be filed by the Veteran who received the services or by the hospital, clinic, or community resource which provided the services, or by a person other than the Veteran who paid for the services. 38 C.F.R. § 17.123. Here, the claim for payment or reimbursement was submitted by the Veteran.

To the extent allowable, payment or reimbursement of the expenses of care, not previously authorized, in a private or public (or Federal) hospital not operated by VA, or of any medical services not previously authorized including transportation (except prosthetic appliances, similar devices, and repairs) may be paid on the basis of a claim timely filed, where in pertinent part, the care and services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health, and when Federal facilities are unavailable (i.e., 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 C.F.R. § 17.120; see also 38 U.S.C.A. § 1728 (a) (1)-(3)

Under 38 U.S.C.A. § 1728 (c) (see also 38 U.S.C.A. § 1725 (f)(1) the term "emergency treatment" is defined as medical care or services furnished in the judgment of VA:

(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.

Analysis

In this case, the Veteran is seeking reimbursement for expenses related to private medical treatment he received for a non-service connected abdominal related condition, on May 8, 2012.     

In a May 5, 2012, North Florida, South Georgia Veteran's Health System report, the Veteran called in and complained of stomach upset, and was reported taking Prevacid for the prior 14 days.  In the early hours of May 8, 2012, the Veteran called the VA Telecare line, and complained of stomach pain, dark stool, and hot palms.  He was told that a visit to the hospital was not authorization for VA payment, yet in the same conversation it appears he was told that based on his response to questions, he would be treated sooner than most patients in the emergency room; that he "need[s] to see a doctor now or your condition could worsen;" and that he should "consider calling an ambulance."  

The May 8, 2012 Flagler Hospital emergency report reflects that the Veteran came to the emergency department with complaints of worsening abdominal pain that was sharp and across the entire abdomen, but which had improved markedly in the emergency department.  He reported pain that had been occurring for several years. The Veteran reported pain at 1-2 out of 10.  A CT scan was done, the results were normal, with no evidence of appendicitis or diverticulitis. 

Following discharge from Flagler hospital, the Veteran called in the VA healthcare system, and reported his visit to the hospital, and that he was prescribed medication which he did not fill.  He reported having a scan at the hospital that showed a thickening of a small area of his stomach wall, and having constipation.  He stated the IV drip of Zofran helped settle his stomach.   

At the time of his visit on May 8, 2012,  the Veteran was service connected for coronary artery disease rated 10 percent disabling, and type 2 diabetes mellitus, rated 20 percent disabling.  

The claim was sent to a VA reviewing physician, and the May 8, 2012, visit was determined to be non-emergent and that VA facilities were available (Gainesville, and Lake City).  It was noted that the Veteran had presented to the emergency room with a chief complaint of abdominal pain.  The Veteran reported that he had had these pains at times for years.  The physical exam revealed that the Veteran had evidence of minimal inflammatory changes involving the descending colon without abscess or obstruction.  

Based upon review of the record as documented hereinabove, the Board grants the appeal.  

Although VA Telecare communication is not an authorization for payment, the Veteran who was experiencing an increase in abdominal pain at mid-night, was advised by a VA medical profession his response to questions indicated he would be "treated sooner than most patients in the emergency room;" that he "need[s] to see a doctor now or your condition could worsen;" and that he should "consider calling an ambulance."  It would be difficult to conclude a reasonable lay person in these circumstances would think anything other than a delay in seeking immediate medical attention would be hazardous to life or health.  In addition, since the suggested VA facilities to which the Veteran could have gone were more than 70 miles from his home at the time, the Board does not consider them to have been a reasonable option.  

Under these circumstances, it is concluded the criteria for payment or reimbursement for the costs of medical treatment provided at Flagler Hospital on May 8, 2012 have been met.  

ORDER

Entitlement to payment or reimbursement for the costs of medical treatment provided at Flagler Hospital on May 8, 2012, is granted.




____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals





Department of Veterans Affairs