Citation Nr: 1813867 Decision Date: 03/07/18 Archive Date: 03/14/18 DOCKET NO. 12-24 110A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred for emergency medical services provided at a non-VA medical facility from December 27, 2010 through December 31, 2011. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. M. Donahue Boushehri, Counsel INTRODUCTION The Veteran had active duty service from November 1952 to November 1956. This matter originally came before the Board of Veterans Appeals (Board) on appeal from a November 2011 administrative decision by the VA Medical Center in St. Cloud, Minnesota. The Veteran was afforded a videoconference hearing before a Veterans Law Judge (VLJ) in May 2013. The hearing transcript is of record. Following the hearing, it was determined that the Veteran's private attorney representative was not accredited before VA. In September 2013, he was informed as such and given an opportunity to have another hearing. He did not respond. A December 2013 memorandum from The American Legion, who was the previous representative, shows that they declined representation pursuant to their internal procedures. The American Legion contacted the Veteran to inform him about the withdrawal and inquired if he wished to reappoint them as his representative. He declined. The Veteran has not submitted a new VA Form 21-22a to appoint another representative. Although The American Legion has submitted a brief on behalf of the Veteran in November 2017, without an executed VA Form 21-22a, the Veteran remains unrepresented in the appeal. In December 2013, the Board denied the Veteran's claim. The Veteran appealed the decision. In an April 2016 decision, the Court of Appeals for Veterans Claims (Court) vacated and remanded the Board's December 2013 decision. In August 2017, the Veteran was notified that the VLJ who conducted the May 2013 Board hearing was no longer employed by the Board and that he had the opportunity to request another hearing. In September 2017, the Veteran declined such a hearing. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT A VA facility was feasibly available to provide emergency treatment and an attempt to use them beforehand would have been considered reasonable by a prudent layperson. CONCLUSION OF LAW The criteria for establishing entitlement payment or reimbursement under 38 U.S.C. § 1725 for emergency treatment received at non-VA medical facilities from December 27, 2010 through December 31, 2011, have not been met. 38 U.S.C. § 1725 (2012); 38 C.F.R. § 17.1002 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION In this case, the Veteran asserts that his initial treatment on December 2010 was emergent and he was not able to communicate that he needed VA care. The Veteran reports that on December 27, 2010, he was returning his spouse to St. Benedict's Senior Community when he began to experience trouble breathing. Two staff members came to his aid and one of the individuals stated he needed to get to a hospital as soon as possible. He stated there was no way to get to the Minneapolis VA Medical Center (VAMC) to a heart specialist. An ambulance took him to St. Cloud Hospital where he was treated for a heart attack. The Veteran stated he had an appointment with the Minneapolis VAMC in January 2011 with a heart specialist, but this was an emergency and he could not wait that long. Private treatment records indicate the initial diagnosis was severe mitral valvular regurgitation related to an abnormal mitral valve with torn cordae tendineae. The Veteran underwent a successful mitral valve replacement with bioprosthetic valve, but had postoperative atrial fibrillation complicated by stroke. A January 2011 VA progress note indicates that St. Cloud Hospital called for a referral for the Veteran. The note indicates the Veteran would be assessed for admission upon receipt of medical information. A subsequent January 2011 VA progress note indicates the Veteran was going to a nursing home in the community when ready for discharge. Another subsequent January 2011 VA progress note shows that the Veteran was discharged from St. Cloud Hospital on January 18, 2011. He was supposed to have follow-up with vascular surgery in 1-2 weeks and with neurology in 4 weeks. The note also indicates that the Veteran was transferred to St. Benedict's Senior Community. The Veteran was seen by podiatry at the St. Cloud VAMC in February 2011. A June 2011 VA progress note indicates a person from billing at St. Benedict's Senior Community contacted the VA as the Veteran's Medicare had run out. She wanted to know if VA would cover the Veteran's physical and occupational therapy. She also reported that the Veteran chose to receive his rehabilitation at St. Benedict nursing home because his wife has been there since 2005 and he was there when he had his heart attack. The VA staff person asked if the Veteran continued to have a medical need for nursing home placement. The staff person from St. Benedict indicated that the Veteran had requested more physical therapy and occupational therapy and that the Veteran could stay as long as he wanted. The therapy department at St. Benedict informed the VA staff person that the Veteran had met all of his goals and that was why he was no longer receiving physical or occupational therapy at the time. The VA staff person informed the St. Benedict staff person that if he wanted additional therapy he would need new orders and would need to be seen by his VA provider. A November 2011 VA cardiology note indicates the Veteran had decided to stay at the private facility and would not be transferring care to VA. A September 2011 opinion indicated the available documentation is insufficient for a determination but the procedure does not appear to have been done emergently. Payment or reimbursement for emergency treatment may be made pursuant to 38 U.S.C. § 1725. To be eligible for payment, all of the conditions must be met. See 38 C.F.R. § 17.1002(a)-(h). 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; (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; (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 (but see Staab v. McDonald, 28 Vet. App. 50 (2016)); (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 (h) 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.) In this case, the evidence demonstrates that treatment provided by St. Cloud Hospital for a heart attack was an emergency medical condition. The evidence of record also demonstrates that the Veteran was enrolled in the VA health care system and received medical services within the 24 months prior to the emergency treatment; that he is financially liable to St. Cloud Hospital; has partial coverage under a health-plan contract for payment or reimbursement for the emergency treatment; and is not eligible under 38 U.S.C. § 1728 for reimbursement. However, the Board concludes that the preponderance of the evidence is against the claim for reimbursement because the evidence supports a finding that a VA facility was feasibly available and a prudent layperson would have reasonably attempted to use the VA facility before seeking unauthorized private medical care. See 38 C.F.R. § 17.1002(c). The Board notes that the St. Cloud VAMC is only 2 miles from the St. Cloud Hospital, and the Veteran was aware of this fact as he had previously had treatment there. The Board therefore finds a VA facility was feasibly available to the Veteran to treat his medical emergency. The Board also finds that an attempt to use the nearby VA Medical Center beforehand would have been considered reasonable by a prudent layperson. The Board acknowledges the Veteran's assertions that he was unable to get to the Minneapolis VAMC to see a heart specialist. Although the Veteran reported difficulty breathing at the time of the initial emergency, he did not report difficulty communicating, and the Veteran does not assert he was unable to go to the St. Cloud VAMC. The Board finds that given the Veteran's symptoms at the time of the emergency, there was a sufficient amount of time to determine whether a VA facility was available for treatment. Additionally, the Veteran has asserted that he had a stroke and was unable to communicate. However, it is clear that after the medical emergency had passed, the Veteran elected a private rehabilitation center instead of a VA facility to be closer to his wife as indicated in the VA treatment records. In light of these circumstances, the Board concludes that an attempt to seek VA treatment prior to his admission to St. Cloud Hospital on December 27, 2010, would have been considered reasonable by a prudent layperson. See 38 C.F.R. § 17.1002(c). Accordingly, the Board finds that the preponderance of the evidence is against payment or reimbursement of unauthorized medical expenses incurred during treatment at non-VA facilities from December 27, 2010 through December 31, 2011, and the claim is denied. 38 U.S.C. §§ 1725, 5107 (2012). ORDER Entitlement to payment or reimbursement of unauthorized medical expenses incurred for emergency medical services provided at a non-VA medical facility from December 27, 2010 through December 31, 2011, is denied. ____________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs