Citation Nr: 19158331 Decision Date: 07/26/19 Archive Date: 07/26/19 DOCKET NO. 17-05 481A DATE: July 26, 2019 ORDER Payment or reimbursement of unauthorized medical expenses incurred during a non-VA hospitalization at Flagler Hospital in St. Augustine, Florida, from February 1, 2016 to February 4, 2016, under the provisions of 38 U.S.C. § 1725, is granted. Payment or reimbursement of unauthorized medical expenses incurred during a non-VA hospitalization at Flagler Hospital in St. Augustine, Florida, from February 19, 2016 to February 23, 2016, under the provisions of 38 U.S.C. § 1725, is granted. Payment or reimbursement of unauthorized medical expenses incurred during a non-VA hospitalization at Flagler Hospital in St. Augustine, Florida, on April 11, 2016, under the provisions of 38 U.S.C. § 1725, is granted. FINDINGS OF FACT 1. The medical expenses incurred at Flagler Hospital in St. Augustine, Florida, from February 1, 2016 to February 4, 2016, were rendered for an adjudicated service-connected disability, in a medical emergency of such a nature that delay would have been hazardous to life or health, and the situation was analogous to one where federal facilities were not reasonably available and an attempt to use them beforehand would not have been reasonable. 2. The medical expenses incurred at Flagler Hospital in St. Augustine, Florida, from February 19, 2016 to February 23, 2016, were rendered for an adjudicated service-connected disability, in a medical emergency of such a nature that delay would have been hazardous to life or health, and the situation was analogous to one where federal facilities were not reasonably available and an attempt to use them beforehand would not have been reasonable. 3. The medical expenses incurred at Flagler Hospital in St. Augustine, Florida, on April 11, 2016, were rendered for an adjudicated service-connected disability, in a medical emergency of such a nature that delay would have been hazardous to life or health, and the situation was analogous to one where federal facilities were not reasonably available and an attempt to use them beforehand would not have been reasonable. CONCLUSIONS OF LAW 1. The criteria for payment or reimbursement for the cost of non-VA medical care received from February 1, 2016 to February 4, 2016, at Flagler Hospital in St. Augustine, Florida are met. U.S.C. §§ 1703, 1712, 1725, 1728; 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.55, 17.93, 17.120, 17.161. 2. The criteria for payment or reimbursement for the cost of non-VA medical care received from February 19, 2016 to February 23, 2016, at Flagler Hospital in St. Augustine, Florida are met. U.S.C. §§ 1703, 1712, 1725, 1728; 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.55, 17.93, 17.120, 17.161. 3. The criteria for payment or reimbursement for the cost of non-VA medical care received on April 11, 2016, at Flagler Hospital in St. Augustine, Florida are met. U.S.C. §§ 1703, 1712, 1725, 1728; 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.55, 17.93, 17.120, 17.161. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Marine Corps from July 1970 to July 1972, from February 1975 to February 1980, and from August 1983 to January 1985. The medical expenses reimbursement claims for Flagler Hospital and associated providers in St. Augustine, Florida, on February 4, 2016, from February 19, 2016 to February 23, 2016, and on April 11, 2016, come before the Board of Veterans’ Appeals (Board) on appeal from September 2016, October 2016, and February 2017 decisions by the Department of Veterans Affairs Medical Center (VAMC) in Gainesville, Florida. The Board notes that this VAMC is a subsidiary of the North Florida/South Georgia Veterans Health System. In the present Board decision, the Board has merged separately docketed medical expenses reimbursement appeals into one appeal. This allows the Board to address two February 2016 reimbursement claims and an April 2016 reimbursement claim in a single Board decision that is both consistent and comprehensive. In August 2017, the Veteran appointed The American Legion as his representative, by filing a VA Form 21-22, Appointment of Veterans Service Organization as Claimant’s Representative. In doing so, he revoked representation from his former representatives of record, Disabled American Veterans (DAV) (appointed in October 2016), Veterans of Foreign Wars of the United States (VFW) (appointed in February 2017) and Military Officers Association of America (separately appointed in February 2017). The Board will accordingly proceed, recognizing the The American Legion as the Veteran’s duly appointed representative. Payment or Reimbursement of Unauthorized Medical Expenses The Veteran is seeking entitlement to payment or reimbursement of unauthorized medical expenses incurred during non-VA hospitalizations at Flagler Hospital in St. Augustine, Florida, from February 1, 2016 to February 4, 2016, from February 19, 2016 to February 23, 2016, and on April 11, 2016. He contends that he needed emergency medical services on those dates and that he was instructed by the VA clinic to visit the emergency room at Flagler Hospital and that the hospital would submit claims on his behalf for reimbursement of expenses incurred because he was in no condition to do that himself. For various reasons, as discussed in detail below, the Board finds that payment or reimbursement for the cost of medical care received from February 1, 2016 to February 4, 2016, from February 19, 2016 to February 23, 2016, and on April 11, 2016, at Flagler Hospital in St. Augustine, Florida, is warranted. Background Claim 1 On February 1, 2016, the Veteran presented to the emergency room at Flagler Hospital (this is a private hospital) in St. Augustine, Florida. Specifically, he sought emergency medical care at this hospital after his automatic implantable cardioverter-defibrillator (AICD) discharged twice in a very close timeframe. The Veteran indicated that he was at work and that his coworkers called for an ambulance to transport him to Flagler Hospital (the nearest hospital). According to the available medical records, the Veteran presented to Flagler Hospital with shortness of breath with exertion. Interrogation of the device revealed the presence of atrial flutter with 2:1 block, which led the discharges from the device because of his rapid ventricular response. In addition, it was noted that he has had some issues with compliance with his medication and he has manifested symptoms of congestive heart failure. Lastly, it was noted that the Veteran had a history of palpitations and that this may have correlated with the presence of recurrent nonsustained monomorphic ventricular tachycardia detected by the device. The Board notes that no surgical notes or discharge summary were provided, and it remains unclear whether the Veteran underwent a replacement or upgrade of his AICD. In any event, he was discharged from Flagler Hospital on February 4, 2016. At the time of discharge, he was diagnosed as having congestive heart failure exacerbation (dilated cardiomyopathy with associated ICD shock), atrial flutter, and thrombocytopenia. It also appears that the Veteran requested that VA be billed for this hospital visit per instructions that he received from VA. The Veteran was billed for services rendered during that emergency room visit. On August 18, 2016 and August 22, 2016, the VA Medical Center (VAMC) in Gainesville, Florida, received the following insurance claims from Flagler Hospital in St. Augustine, Florida: • UB Claim ID# 414813 – $32,178.92 – episode of care provided by Flagler Hospital from 2/01/2016-2/04/2016. • HCFA Claim ID# 1632404 – $110.00 – episode of care provided by Flagler Hospital/First City Hospitalist Group on 2/02/216. On September 30, 2016, the VAMC denied the insurance claims on the basis that they were received on August 22, 2016, which was more than 90 days after the dates of service and did not meet the threshold requirement for a timely filed claim under 38 U.S.C. § 1725. See 38 C.F.R. § 17.1004(d). Subsequently, the Veteran appealed the VAMC’s determination. Claim 2 On February 19, 2016, the Veteran presented to the emergency room at Flagler Hospital in St. Augustine, Florida. Upon arrival, he complained that he was experiencing shortness of breath on exertion. He indicated that he had experienced multiple AICD discharges. He asserted that he was in moderate pain. He reported having weight gain, water retention, abdominal distention, neck pressure, and light headedness. He was found to have congestive heart failure with 20 percent ejection fraction and QRS of 150 milliseconds. Interrogation of the Veteran’s AICD showed paroxysmal ventricular overdrive pacing. The Veteran’s AICD was upgraded to a Biventricular ICD due to nonischemic cardiomyopathy and ICD discharges. He was diagnosed as having congestive heart failure, ischemic cardiomyopathy, and volume overload – with acute systolic heart failure. The Veteran was discharged from the hospital on February 23, 2016 and billed for the medical expenses incurred during his stay. On January 13, 2017, the VA Medical Center (VAMC) in Gainesville, Florida, received the following insurance claim from Flagler Hospital in St. Augustine, Florida: • HCFA Claim ID# 1755516 – $4,847.00 – episode of care provided by Flagler Hospital/Baker Gilmour MD PA on 2/22/2016. On February 15, 2017, the VAMC denied the insurance claim on the basis that it was received on January 13, 2017, which was more than 90 days after the dates of service and did not meet the threshold requirement for a timely filed claim under 38 U.S.C. § 1725. See 38 C.F.R. § 17.1004(d). Subsequently, the Veteran appealed the VAMC’s determination. Claim 3 On April 11, 2016, the Veteran presented to the emergency room at Flagler Hospital in St. Augustine, Florida. Upon his arrival, the Veteran stated that he felt that he was going to pass out. He reported having a history of episodic atrial flutter, paroxysmal ventricular tachycardia, atherosclerosis of the coronary artery, congestive heart failure, cardiomyopathy, and cardiac arrest. The Veteran reported that he experienced a near-syncopal episode about one hour before his arrival to the emergency room. He further explained that he had been having intermittent episodes of lightheadedness and that today’s episode was the worst he has had yet. He denied having chest pain, shortness of breath, or loss of consciousness. The emergency room physician reported that the onset of symptoms was gradual but moderate in terms of severity. The Veteran was diagnosed as having near-syncope. He was discharged on the same day that he was admitted for emergency care and later billed for those services. On September 20, 2016 and September 30, 2016, the VA Medical Center (VAMC) in Gainesville, Florida, received the following insurance claims from Flagler Hospital in St. Augustine, Florida: • HCFA Claim ID# 1654262 – $958.00 – episode of care provided by Flagler Hospital/Emergency Resources Group on 4/11/2016. • UB Claim ID# 425347 - $4,406.14 – episode of care provided by Flagler Hospital on 4/11/2016. On October 31, 2016, the VAMC denied the claims on the basis that they were received on September 20th and 30th of 2016, which was more than 90 days after the date of service and did not meet the threshold requirement for a timely filed claim under 38 U.S.C. § 1725. See 38 C.F.R. § 17.1004(d). Subsequently, the Veteran appealed the VAMC’s determination. Analysis When VA facilities are not capable of furnishing required care or services, VA may contract with non-VA facilities in order to furnish certain care, including hospital care or medical services for the treatment of medical emergencies that pose a serious threat to the life or health of a veteran receiving medical services in a VA facility, until such time following the furnishing of care in the non-VA facility as the veteran can be safely transferred to a VA facility. 38 U.S.C. § 1703(a)(3); 38 C.F.R. § 17.52. The admission of a veteran to a non-VA hospital at the expense of VA must be authorized in advance. 38 C.F.R. § 17.54; Malone v. Gober, 10 Vet. App. 539 (1997). In the case of an emergency that existed at the time of admission, an authorization may be deemed a prior authorization if an application is made to VA within 72 hours after the hour of admission. 38 C.F.R. § 17.54. The Veteran does not contend, and the evidence does not otherwise suggest, that the Veteran’s treatment from February 1, 2016 to February 4, 2016, from February 19, 2016 to February 23, 2016, and on April 11, 2016, was authorized in advance. Nevertheless, as discussed below, VA may reimburse veterans for unauthorized medical expenses incurred in non-VA facilities under 38 U.S.C. § 1725 or 38 U.S.C. § 1728. To obtain payment or reimbursement under 38 U.S.C. § 1725, a claimant must submit to the VA medical facility of jurisdiction a completed standard billing form (such as a UB92 or a HCFA 1500). See 38 C.F.R. § 17.1004(b). Also, to receive payment or reimbursement, a claimant must file a claim within 90 days after the latest of the following: (1) the date that the veteran was discharged from the facility that furnished the emergency treatment; (2) the date of death, but only if the death occurred during transportation to a facility for emergency treatment or if the death occurred during the stay in the facility that included the provision of the emergency treatment; or, (3) the date the veteran finally exhausted without success, action to obtain payment or reimbursement for the treatment from a third party. See 38 C.F.R. § 17.1004(d). Regardless, VA will provide retroactive payment or reimbursement for emergency treatment received by the Veteran on or after July 19, 2001, but more than 90 days before May 21, 2012, if the claimant files a claim for reimbursement no later than 1 year after May 21, 2012. See 38 C.F.R. § 17.1004(f). A claim under 38 U.S.C. § 1728 must be filed within 2 years of the date the service was rendered; or the date the Veteran was notified by VA that service connection for the disability for which he received care was allowed. 38 C.F.R. § 17.126(a), (b). The Veteran received treatment from February 1, 2016 to February 4, 2016, from February 19, 2016 to February 23, 2016, and on April 11, 2016, at Flagler Hospital. The Veteran was not notified by VA that service connection for his heart disorder was allowed until October 2017. See October 2017 rating decision (wherein the claim of entitlement to service connection for coronary artery disease with congestive heart failure, status post myocardial infarction, was granted). As discussed above, the VAMC received claims from Flagler Hospital and associated providers (on behalf of the Veteran) on August 18, 2016 and August 22, 2016, September 20, 2016 and September 30, 2016, and January 13, 2017. The VAMC subsequently denied these claims on the basis that they were received more than 90 days after the date that the Veteran was discharged from the facility that furnished the emergency treatment. Indeed, the record reflects that the Veteran filed his claim within 2 years of the date that he was notified by VA that service connection for the disability for which he received care was allowed. Thus, while the Veteran’s claims were not timely under 38 U.S.C. § 1725, the claims were timely under 38 U.S.C. § 1728. Under 38 U.S.C. § 1728, VA may reimburse Veterans for unauthorized medical expenses incurred in non-VA facilities when: (a) 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) 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) 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. In this case, the Veteran is currently service-connected for coronary artery disease with congestive heart failure, status post myocardial infarction, rated as 100 percent disabling; acne valgus with epidermal cyst excision of the left side of the face, rated as 30 percent disabling; and left ear hearing loss; rated as noncompensable. His combined rating is 30 percent from January 31, 1992 and 100 percent from August 18, 2017. Consequently, the Board finds that the Veteran has a total disability permanent in nature resulting from a service-connected disability. As such, the Veteran meets the criteria of 38 C.F.R. § 17.120(a)(3). The Veteran is seeking reimbursement for medical expenses incurred at Flagler Hospital in St. Augustine, Florida, from February 1, 2016 to February 4, 2016, from February 19, 2016 to February 23, 2016, and on April 11, 2016. Medical treatment records note that the Veteran was treated for congestive heart failure exacerbation (dilated cardiomyopathy with associated ICD shock), atrial flutter, and thrombocytopenia during his first hospital visit; having congestive heart failure, ischemic cardiomyopathy, and volume overload – with acute systolic heart failure during his second hospital visit; and near-syncope during his third hospital visit. The Veteran indicated that he felt he was having a heart attack during each emergency episode. Given the symptoms that the Veteran experienced during each episode, the Board understands why he sought emergency medical services at Flagler Hospital (closer in proximity to his residence and near the VA outpatient clinic where he was receiving ongoing medical treatment for his now service-connected heart disorder). The VA outpatient clinic that the Veteran would normally have visited would not likely have adequate resources to handle the Veteran’s emergency care and driving to the VAMC in Gainesville, Florida would have taken a significant amount of time. In light of the above facts, the Board finds that the Veteran’s symptoms were such that a that delay would have been hazardous to life or health. Further, the Board concludes that the Veteran’s situation was analogous to one where federal facilities were not reasonably available given the circumstances. Thus, reimbursement or payment of medical expenses incurred at Flagler Hospital in St. Augustine, Florida, from February 1, 2016 to February 4, 2016, from February 19, 2016 to February 23, 2016, and on April 11, 2016, is warranted. In the future, in light of the high cost of private care, the Veteran is asked, when possible, to use VA care to avoid such issues (when possible). JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. L. Marcum, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.