Citation Nr: 20002801 Decision Date: 01/14/20 Archive Date: 01/13/20 DOCKET NO. 14-34 273A DATE: January 14, 2020 REMANDED Entitlement to payment or reimbursement of unauthorized medical expenses incurred during a non-VA hospitalization at St. Charles Medical Center and associated providers from February 7th-11th of 2014, is remanded. INTRODUCTION The Veteran had active duty service from May 1967 to January 1968 in the U.S. Navy. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 decision by the Department of Veterans Affairs (VA) Veteran’s Integrated Service Network Payment Center (VISN 20) in Portland, Oregon. This appeal was processed using a paper-based claims file. There are no relevant electronic records. REASONS FOR REMAND A VA primary care telephone note and VA addendum note dated on February 4th and February 5th of 2014 document that the Veteran contacted a VA nurse, advising her that he had been experiencing fevers, headaches, sneezing, coughing, and green nasal discharge for three weeks. For the past several days, he felt very weak. By February 5, 2014, he called the VA again, informing the VA nurse he would visit the nearest emergency room. On the same day - Wednesday, February 5, 2014, the Veteran was hospitalized at St. Charles Medical Center in Bend, Oregon. This is a private facility. He was driven by his friends to this private ER, which is only 10 minutes from his home. He had a history of prostate cancer, such that he wore a Foley catheter. He reported that he began feeling sick around five weeks before. His symptoms included fevers, myalgias, sweating, coughing, chest congestion, shortness of breath, shaking rigors, nausea, vomiting, and diarrhea. His symptoms vacillated in severity until one week before, when they began to worsen. It was noted he did not receive a flu shot that year. He was admitted to the intermediate care unit (IMCU) of the St. Charles Medical Center in “serious and unstable condition” for further treatment and close observation, with the potential for future intensive care. He underwent laboratory testing, including chest X-rays. His final diagnoses in the St. Charles discharge summary were “severe” sepsis, influenza (type A infection), a “complicated” urinary tract infection, pneumonia, acute renal failure, severe malnutrition, and diarrhea. In the February 5, 2014 private history and physical report from St. Charles, his sepsis was described as a “severe” and “life-threatening condition.” Private hospital personnel observed the Veteran appeared to be “very ill” and “considerably weak.” Therefore, on February 5, 2014, he was admitted on an inpatient basis in “critical” condition. His acuity triage level was (3) or “urgent.” He remained hospitalized at St. Charles for a total of seven days from February 5th-11th of 2014. He was successfully treated with a variety of antibiotics, supplemental protein, nutritional supplements, and other medications. His fever began to dissipate. Upon discharge on February 11, 2014, he was instructed to follow-up with his VA primary care doctor in 1-2 weeks. It was recommended he visit a skilled nursing facility, but he declined to do so. The Veteran is not service-connected for any disability by VA. Thus, there is no dispute that his private hospitalization at St. Charles from February 5th-11th of 2014 was for a nonservice-connected disability. He also did not receive any prior authorization from VA for this private hospitalization. The Veteran was 65 years old at the time of the private hospitalization. He had no health insurance at that time. It appears VA already covered the costs of the Veteran’s first two days of his private hospitalization at St. Charles Medical Center from February 5th-6th of 2014. Therefore, there are NO outstanding costs for the medical expenses associated with his initial February 5th-6th of 2014 private hospitalization at St. Charles Medical Center. It is undisputed his illness was a “medical emergency” and VA facilities were not feasibly available” to him during that timeframe. See 38 C.F.R. § 17.1002(b), (c). However, VA did not cover the costs of the Veteran’s continuing inpatient hospitalization at St. Charles Medical Center from February 7th-11th of 2014. It follows that the Veteran has requested payment or reimbursement for the costs of his unauthorized private hospitalization at St. Charles Medical Center from February 7th-11th of 2014. The private hospital and associated providers in February 2014 have submitted various HCFA Forms 1500 and FPPS 837 Professional Claims / Institutional EDI Data Displays. Initially, under 38 U.S.C. § 1703, when VA facilities or other government facilities are not capable of furnishing economical hospital care or medical services because of geographic inaccessibility or are not capable of furnishing care or services required, VA may authorize or contract with non-VA facilities for care. 38 U.S.C. § 1703(a) (2012); 38 C.F.R. § 17.52(a) (2019). However, in this case, VA did not authorize or contract for the private hospital (St. Charles) to provide the Veteran with no cost private care from February 7th-11th of 2014. The Veteran has never contended as such. Also, no clinical evidence of record documents any prior authorization by VA. Thus, the issue of prior authorization, as delineated by VA statute and regulation, is not applicable here. Instead, in the present case, in adjudicating the “unauthorized” medical expenses claim, the Board concludes that 38 U.S.C. § 1725 for veterans with nonservice-connected disability is for consideration - the Veterans Millennium Health Care and Benefits Act. Under this Act, payment or reimbursement of non-VA emergency medical services for nonservice-connected disorders for veterans without insurance is available if certain conditions are met. 38 U.S.C. § 1725 (2012); 38 C.F.R. §§ 17.1000-17.1008 (2019). Effective October 10, 2008, the provisions of 38 U.S.C. § 1725 and § 1728 were amended. See Veterans’ Mental Health and Other Care Improvements Act of 2008, Pub. L. No. 110-387, § 402, 122 Stat. 4110 (2008). The changes are liberalizing in that they make reimbursement for medical expenses mandatory instead of discretionary, as well as expand the definition of “emergency treatment” beyond the point of stabilization. In addition, the changes apply the more liberal prudent layperson standard for determining whether an actual medical emergency existed under either 38 U.S.C. § 1725 and § 1728. In the May 2014 Agency of Original Jurisdiction (AOJ) decision on appeal and in the October 2014 Statement of the Case (SOC), the AOJ denied the Veteran’s medical expenses claim for his private hospitalization at St. Charles Medical Center from February 7th-11th of 2014. The basis for the denial was that sometime on February 7, 2014, the Veteran’s condition had “stabilized,” such that he could have been transferred to a VA facility (the VAMC in Portland, Oregon) for continuation of his inpatient treatment. See 38 C.F.R. § 17.1001(d). There is an implication in the AOJ’s findings that VA medical facilities were “feasibly available” to the Veteran for transfer on February 7, 2014, but he refused to be transferred. The Veteran disagrees with any such finding. In any event, there were no documented attempts of record to transfer the Veteran from St. Charles Medical Center to a VA medical facility from February 7th-11th of 2014. Furthermore, there is an implication from the AOJ the Veteran did not meet the criteria for payment or reimbursement “beyond the point of stabilization” for his continuing private hospitalization at St. Charles Medical Center from February 7th-11th of 2014. See 38 C.F.R. §§ 17.1001(d); 17.1005(b)-(c). In summary, the Veteran is requesting payment or reimbursement for his private hospitalization from February 7th-11th of 2014 at St. Charles Medical Center beyond the point of his stabilization, or in the alternative, he believes his medical condition never stabilized until his day of discharge. As mentioned above, pursuant to the Veterans Millennium Health Care and Benefits Act, payment or reimbursement of non-VA emergency medical services for nonservice-connected disorders for veterans without insurance is available if certain conditions are met. 38 U.S.C. § 1725; 38 C.F.R. §§ 17.1000-17.1008. With regard to stabilization, the amended statutes expand the meaning of “emergency treatment” under section 1725(f)(1) and section 1728(c) by stating that emergency treatment means 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 such time (i) 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) as a Department facility or other Federal facility accepts such transfer if 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 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. See 38 U.S.C. § 1725 (2012) (emphasis added). VA regulation defines “stabilized” to mean that no material deterioration of the emergency medical condition is likely, within reasonable medical probability, to occur if the veteran is discharged or transferred to a VA or other Federal facility. 38 C.F.R. § 17.1001(d). Generally, VA will not approve claims for payment or reimbursement of the costs of emergency treatment not previously authorized for any period beyond the date on which the medical emergency ended – that is, beyond the point of stabilization. For this purpose, VA considers that an emergency ends when the designated VA clinician at the VA facility has determined that, based on sound medical judgment, a veteran who received emergency treatment: (1) could have been transferred from the non-VA facility to a VA medical center (or other appropriate Federal facility) for continuation of treatment, or (2) could have reported to a VA medical center (or other appropriate Federal facility) for continuation of treatment. 38 C.F.R. § 17.1005(b). However, claims for payment or reimbursement of the costs of emergency treatment not previously authorized may be approved for continued, non-emergent treatment (that is, treatment after the veteran’s condition has stabilized), only if: (1) The non-VA facility notified VA at the time the veteran could be safely transferred to a VA facility (or other appropriate Federal facility), but the transfer of the veteran was not accepted, and (2) The non-VA facility made and documented reasonable attempts to request transfer of the veteran to a VA facility or other appropriate Federal facility. This means the non-VA facility contacted the VA Transfer Coordinator, Administrative Officer of the Day, or designated staff responsible for accepting transfer of patients to VA (or other appropriate Federal facility) and documented such contact in the veteran's progress/physicians’ notes, discharge summary, or other applicable medical record. 38 C.F.R. § 17.1005(c). But if a stabilized veteran who requires continued non-emergency treatment refuses to be transferred to an available VA facility (or other Federal facility), VA will make payment or reimbursement only for the expenses related to the initial evaluation and the emergency treatment furnished to the veteran up to the point of refusal of transfer by the veteran. 38 C.F.R. § 17.1005(d). Similarly, no reimbursement or payment of services not previously authorized will be made when such treatment was procured through private sources in preference to available VA or government facilities. 38 C.F.R. § 17.130. In short, under the new version of 38 U.S.C. § 1725, effective October 10, 2008, and its implementing regulation, 38 C.F.R. § 17.1005, VA is authorized to make payment beyond the point of stabilization, but only if certain criteria are met. The public policy behind the change in law is that if VA fails to promptly accept transfer of a veteran to a VA facility upon request once that veteran has stabilized, it is unjust to make the veteran liable for additional expense at the non-VA facility due to no fault of the veteran. In any event, upon review, the Board finds that additional development of the evidence is required. First, on remand, the AOJ should secure a copy of the following missing document and associate it with the claim file: A July 14, 2014 Veteran Health Administration (VHA) clinician opinion. (In this regard, the October 2014 SOC listed this VHA clinician opinion as being part of the record. But a review of the record reveals the July 14, 2014 VHA clinical opinion was not associated with the claims file for the Board to review). Second, a remand is required to secure potentially outstanding VA treatment records. At present, there are several VA telephone encounter notes and non-VA hospital notification notes in the claims file dated from February 4th-15th of 2014. It appears the Veteran also received his primary care treatment at the VA Community Based Outpatient Clinic (CBOC) in Bend, Oregon, but no such records are present in the claims file. Therefore, the AOJ should obtain all VA telephone or administrative or medical records from the relevant VA facility(ies) located in Oregon for the Veteran dated from January 2014 through February 2014. Any additional VA telephone or administrative or medical records may shed light on the circumstances surrounding the Veteran’s medical condition prior to his February 2014 private hospitalization, stability, payment beyond the point of stabilization, and any refusal to transfer. See 38 U.S.C. § 1725(f)(1)(C) (effective October 2008) and 38 C.F.R. §§ 17.1001(d), 17.1005(b)-(d) (effective January 2018). In this regard, the VA Transfer Coordinator, Administrative Officer of the Day, or designated staff responsible for accepting transfer of patients to VA (or other appropriate Federal facility) may have documented such contact in the Veteran’s progress/physicians’ notes, discharge summary, or other applicable medical record. See 38 C.F.R. § 17.1005(c). VA must continue to obtain such records unless it is documented that the records do not exist or that further efforts would be futile. 38 U.S.C. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2), (c)(3). See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is charged with constructive knowledge of evidence generated by VA). Third, the AOJ should obtain complete private hospital records from St. Charles Medical Center located in Bend, Oregon dated during the Veteran’s inpatient stay from February 5th – 11th of 2014, along with any associated private telephone or private administrative records dated in February 2014 from St. Charles. At present, there are limited, incomplete private hospital records in the claims file from St. Charles for the time period from February 5th – 11th of 2014. For example, the only private hospital records from this facility present in the claims file are the initial history and physical and the final discharge summary dated on February 5, 2014, and February 11, 2014, respectively. There are no private hospital records at all from St. Charles for the time period from February 6th – 10th of 2014. A complete set of the Veteran’s private hospital records for the time period from February 5th – 11th of 2014 may shed light on the circumstances surrounding the Veteran’s stability, payment beyond the point of stabilization, and any refusal to transfer. See 38 U.S.C. § 1725(f)(1)(C) (effective October 2008) and 38 C.F.R. §§ 17.1001(d), 17.1005(b)-(d) (effective January 2018). At present, the Board cannot determine from the record when or if private hospital personnel determined that the Veteran’s medical condition had stabilized. For the private hospital records above dated from February 5th – 11th of 2014, the Veteran has not completed the necessary authorization form (VA Form 21-4142) to secure complete private hospital records from St. Charles Medical Center. In this regard, the AOJ should ask the Veteran to provide the full names of the provider(s) who treated him, the specific dates of treatment, or any address or telephone information. VA is required to make reasonable efforts to obtain all “relevant” records, including private hospital records like these, which the Veteran adequately identifies and authorizes VA to obtain. 38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(c). VA regulation clarifies that “reasonable efforts” will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. 38 C.F.R. § 3.159(c)(1). Fourth, after securing any additional private hospital or VA treatment records described above, the AOJ should secure a new medical opinion from a VHA clinician to assess the date, if any, when the Veteran “stabilized” at St. Charles Medical Center from February 5th – 11th of 2014, to mean that no material deterioration of the emergency medical condition is likely, within reasonable medical probability, to occur if the veteran is discharged or transferred to a VA or other Federal facility. See 38 C.F.R. § 17.1001(d). For this purpose, VA considers that an emergency ends when the designated VA clinician at the VA facility has determined that, based on sound medical judgment, a veteran who received emergency treatment: (1) could have been transferred from the non-VA facility to a VA medical center (or other appropriate Federal facility) for continuation of treatment, or (2) could have reported to a VA medical center (or other appropriate Federal facility) for continuation of treatment. 38 C.F.R. § 17.1005(b). Fifth, a SOC or SSOC issued to an appellant must be complete enough to allow the appellant to present argument before the Board and must contain a summary of the applicable laws and regulations with appropriate citations and a discussion of how such laws and regulations affect the determination. 38 U.S.C. § 7105(d); 38 C.F.R. § 19.29. Additionally, a SSOC will be furnished to an appellant when a material defect in a prior SOC or SSOC is discovered, making it inadequate. 38 C.F.R. § 19.31(b)(2), (3). In this case, the October 2014 SOC did not include a complete or updated citation and discussion of the provisions for stability, payment beyond the point of stabilization, and “refusal to transfer” — 38 C.F.R. §§ 17.1001(d), 17.1005(b)-(d). In fact, the AOJ did not appear to consider payment beyond the point of stabilization at all. Moreover, these VA regulations were amended in January 2018. Therefore, to ensure due process, and to avoid prejudice, on remand, the AOJ should issue a rating decision or SSOC which contains citation or discussion of the relevant provisions for stability, payment beyond the point of stabilization, and “refusal to transfer” — 38 C.F.R. §§ 17.1001(d), 17.1005(b)-(d) (effective January 2018). See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Therefore, this matter is REMANDED for the following action: 1. The AOJ should secure a copy of the following missing document and associate it with the claim file: A July 14, 2014 Veteran Health Administration (VHA) clinical opinion. (In this regard, the October 2014 SOC listed this VHA clinical opinion as being part of the record. But a review of the record reveals the July 14, 2014 VHA clinical opinion was not associated with the claims file for the Board to review). 2. The AOJ should obtain all VA telephone or VA administrative or VA treatment records from the relevant VA facility(ies) in Oregon for the Veteran dated from January 2014 through February 2014. All attempts to secure these VA records, and any response received, must be documented in the claims file. If no VA telephone or VA administrative or VA treatment records are available for the time period from January 2014 through February 2014, a response to that effect is required and should be documented in the file. (At present, there are several VA telephone encounter notes and non-VA hospital notification notes in the claims file dated from February 4th-15th of 2014. It appears the Veteran also received his primary care treatment at the VA Community Based Outpatient Clinic (CBOC) in Bend, Oregon, but no such records are present in the claims file. Any additional VA telephone or administrative or medical records may shed light on the circumstances surrounding the Veteran’s medical condition prior to his February 2014 private hospitalization, stability, payment beyond the point of stabilization, and any refusal to transfer.) 3. The AOJ should contact the Veteran and ask that he complete and return the necessary authorization (VA Form 21-4142) for VA to obtain complete private hospital records from St. Charles Medical Center located in Bend, Oregon dated during the Veteran’s inpatient stay from February 5th – 11th of 2014, along with any associated private telephone or private administrative records dated in February 2014 from St. Charles. A complete set of these private hospital records may shed light on the circumstances surrounding the Veteran’s stability, payment beyond the point of stabilization, and any refusal to transfer. They may document any discussion surrounding possible attempts to transfer the Veteran to a VA facility from February 5th – 11th of 2014, which would be instrumental in adjudicating this matter. Ask that the Veteran provide the full names of the hospital provider(s) who treated him, the specific dates of treatment, and any address or telephone information. If he provides a completed release form (VA Form 21-4142) authorizing VA to obtain the relevant private hospital records from St. Charles Medical Center located in Bend, Oregon dated during the Veteran’s inpatient stay from February 5th – 11th of 2014, then attempt to obtain them and associate these records with the claims file. The Veteran is also asked to provide any pertinent private telephone or administrative or medical records from St. Charles Medical Center dated in February 2014, if he has them in his possession. 4. After completion of steps 1-3 above, the AOJ should secure a new medical opinion from a VHA clinician to assess the date, if any, when the Veteran “stabilized” at St. Charles Medical Center from February 5th – 11th of 2014, to mean that no material deterioration of the emergency medical condition is likely, within reasonable medical probability, to occur if the veteran is discharged or transferred to a VA or other Federal facility. See 38 C.F.R. § 17.1001(d). For this purpose, VA considers that an emergency ends when the designated VA clinician at the VA facility has determined that, based on sound medical judgment, a veteran who received emergency treatment: (1) could have been transferred from the non-VA facility to a VA medical center (or other appropriate Federal facility) for continuation of treatment, or (2) could have reported to a VA medical center (or other appropriate Federal facility) for continuation of treatment. See 38 C.F.R. § 17.1005(b). 5. After completion of steps 1-4 above, the AOJ should readjudicate the issue on appeal of payment or reimbursement of unauthorized medical expenses incurred during a non-VA hospitalization at St. Charles Medical Center and associated providers from February 7th – 11th of 2014. (If the claim is denied, the SSOC should contain citation and discussion of the relevant provisions for stability, payment beyond the point of stabilization, and any refusal to transfer. See 38 U.S.C. § 1725(f)(1)(C) (effective October 2008) and 38 C.F.R. §§ 17.1001(d), 17.1005(b)-(d) (effective January 2018). Previously, the AOJ did not appear to consider payment   beyond the point of stabilization at all. Moreover, these VA regulations were amended in January 2018). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.S. Rubin, 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.