Citation Nr: 1815982 Decision Date: 03/14/18 Archive Date: 03/23/18 DOCKET NO. 15-43 917 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Seattle, Washington THE ISSUE Entitlement to reimbursement of medical expenses for treatment provided at Providence Centralia Hospital from September 7, 2014, through September 9, 2014. ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran had active service in the U.S. Navy from October 1951 to August 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 decision of the Department of Veterans Affairs Medical Center (VAMC) in Seattle, Washington, which denied reimbursement for medical expenses for treatment provided at Providence Centralia Hospital from September 7, 2014, through September 9, 2014. 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). FINDINGS OF FACT 1. Private treatment received at Providence Centralia Hospital from September 7, 2014, through September 9, 2014, was not authorized by VA. 2. Private treatment received at Providence Centralia Hospital from September 7, 2014, through September 9, 2014, was in a hospital emergency department 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. 3. The Veteran was enrolled in the VA healthcare system, but an attempt to use a VA facility would not have been considered reasonable by a prudent layperson. 4. The Veteran was financially liable for the emergency treatment received and was not fully covered under a health-plan contract for reimbursement of the treatment. CONCLUSION OF LAW The criteria for reimbursement of private medical expenses for treatment received at Providence Centralia Hospital from September 7, 2014, through September 9, 2014, have been met. 38 U.S.C. §§ 1725, 1728 (2012); 38 C.F.R. §§ 17.54 , 17.120, 17.121, 17.1000-17.1002 (2017). (CONTINUED ON NEXT PAGE) REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Prior Authorization In claims involving payment or reimbursement by VA for medical expenses incurred as a result of treatment at a private facility, it must first be determined whether the services for which payment is sought were authorized by VA. See 38 U.S.C. § 1703(a); 38 C.F.R. § 17.54. The Veteran has a history of bronchiectasis. VA records dated September 5, 2014, show that the Veteran called his VA community-based outpatient clinic (CBOC) complaining of increased coughing and sputum. He was noted to have spasms of coughing during the phone call which resulted in dyspnea. The responding nurse practitioner noted that the Veteran was more than two hours away from the Seattle VAMC and was not medically stable enough to drive there. She instructed him to report to the Providence Centralia Hospital (PCH) emergency room (ER). Per the Veteran's October 2015 statement, VA reimbursed him for September 5 ER visit. Private records from PCH show that the Veteran had presented on September 5 for treatment but declined inpatient admission. Two days later, on September 7, he again presented to the ER with recurrent coughing which interfered with breathing, sleeping and eating, and resulted in nausea and occasional emesis. In his May 2015 and October 2015 statements, the Veteran argued that the private treatment he received on September 7 was for the same illness for which he was authorized to receive treatment on September 5. The Board finds that prior authorization for the September 7 visit to PCH cannot be inferred from the previous authorization for the September 5 visit. Generally, the determination as to whether VA gave prior authorization for non-VA medical care received at a private facility is factual, rather than medical, in nature. Similes v. Brown, 6 Vet. App. 555, 556 (1994). Nevertheless, VA medical personnel made a determination to refer the Veteran to PCH on September 5 based on his reported symptoms and their own observations at the time. Treatment records show the Veteran declined inpatient admission at PCH and elected to go home. He did not make contact with VA personnel again before returning to the PCH ER, and therefore VA did not have an opportunity to reassess the Veteran's circumstances to determine if referral to a non-VA facility was again warranted. Significantly, 38 C.F.R. § 17.54 allows for authorization from VA for private treatment to be deemed as prior authorization even when requested up to 72 hours after admission to the private facility. However, the evidence of record, to include the Veteran's statements and VA records dated after September 9, do not show that the Veteran sought such authorization. In the absence of any authorization for treatment received at PCH from September 7 through September 9, the remaining question is whether these unauthorized expenses are otherwise reimbursable. II. Reimbursement of Unauthorized Medical Expenses There are two ways in which the Veteran may be reimbursed for private medical expenses. The first is under 38 U.S.C. § 1728, which is applicable where a veteran has a total disability; or received private treatment for either a service-connected disability or a non-service-connected disability associated with and held to be aggravating service-connected disability; or for any treatment of a veteran who is participating in a rehabilitation program. This Veteran does not have total disability, and he is service-connected only for a right ankle injury which has no relationship to the respiratory condition at issue in this appeal. He has not asserted, nor does the evidence otherwise suggest, that he was participating in a rehabilitation program. Therefore, the provisions of 38 U.S.C. § 1728 are not applicable in this case. The second means of reimbursement is through 38 U.S.C. § 1725 and 38 C.F.R. §§ 17.1000-1008, which allow for reimbursement for emergency treatment. Eligibility under this authority requires the Veteran to satisfy eight different elements. First, the emergency services must be provided in a hospital emergency department or a similar facility held out as providing emergency care to the public. Private treatment records show that the Veteran was treated at the PCH ER, and subsequently admitted for inpatient treatment, for the period from September 7, 2014, through September 9, 2014. This facility provides emergency care to the public, and therefore this element has been met. Second, the claim for payment or reimbursement for the initial evaluation and treatment must be 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. Records from PCH show that the Veteran reported recurrent coughing which interfered with breathing, sleeping and eating, and resulted in nausea and occasional emesis. These symptoms are sufficiently severe to satisfy this second element. Third, 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 discussed above, the Veteran had previously contacted the VA CBOC on September 5 and was referred to the PCH ER, with the nurse practitioner noting that the Veteran lived more than two hours away from the VA facility. While the Board found that this referral did not authorize treatment on September 7, a prudent layperson acting in the Veteran's circumstances would have not have considered it reasonable to attempt to use the CBOC again given the distance from his home and the fact that he VAMC personnel referred him to PCH two days earlier. Therefore, this element has been satisfied. Fourth, 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. Records show the Veteran was enrolled with VA during the applicable period, and this element has been met. Fifth, the Veteran is financially liable to the provider of emergency treatment for the treatment. He has submitted billing statements from PCH showing his financial liability, and this element has also been met. Sixth, the Veteran does not have coverage under a health-plan contract that would fully extinguish the medical liability for the emergency treatment. Notably, the Veteran's claim was previously denied in the October 2014 decision and October 2015 reconsideration and statement of the case because he had health coverage that paid part of his medical liability. However, this element was recently amended in accordance with Staab v. McDonald, 28 Vet. App. 50 (2016). See 83 Fed. Reg. 974 (Jan. 9, 2018). VA amended 38 C.F.R. §§ 17.1002 and 17.1005 to expand eligibility for emergency treatment to include veterans who receive only partial payment from a health-plan contract, which includes this Veteran. Seventh, if the condition for which the emergency treatment was furnished was caused by an accident or work-related injury, the claimant must exhaust without success all claims and remedies reasonably available to the Veteran or provider against a third party for payment of such treatment. This Veteran's treatment was not caused by an accident or work-related injury, and therefore this element is not applicable. Finally, the Veteran must not eligible for reimbursement under 38 U.S.C.A. § 1728 for the emergency treatment provided. As discussed above, the Veteran satisfies this element as well. In sum, the Veteran's treatment at PCH from September 7, 2014, through September 9, 2014, was not authorized by VA, but he nevertheless satisfies the criteria for reimbursement under 38 U.S.C. § 1725. (CONTINUED ON NEXT PAGE) ORDER Entitlement to reimbursement of private medical expenses for treatment received at Providence Centralia Hospital from September 7, 2014, through September 9, 2014, is granted. ____________________________________________ DELYVONNE M. WHITEHEAD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs