Citation Nr: 20005371 Decision Date: 01/22/20 Archive Date: 01/22/20 DOCKET NO. 15-31 608 DATE: January 22, 2020 REMANDED Entitlement to payment or reimbursement of unauthorized medical expenses incurred during a non-VA hospitalization at The Villages Regional Hospital from March 11th-13th of 2015, is remanded. INTRODUCTION The Veteran had active duty from January 1971 to October 1972 in the U.S Army. His awards and decorations include the Combat Infantryman Badge (CIB) and Bronze Star Medal, among others. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 decision by the Department of Veterans Affairs (VA) North Georgia / South Florida Veterans Health System in Gainesville, Florida. This appeal was processed using both a paper-based claims file and an electronic Veterans Benefits Management System (VBMS). In his August 2015 VA Form 9, the Veteran requested a Board videoconference hearing before a Veterans Law Judge. However, he cancelled that request in a February 2019 statement (located on VBMS only). Therefore, the Board hearing request is considered withdrawn. See 38 C.F.R. § 20.704(e) (2019). REASONS FOR REMAND On Thursday, March 10, 2015, at 2:44pm, the Veteran was transported to The Villages Regional Hospital in The Villages, Florida, by way of an ambulance through Lake Emergency Medical Services (Lake EMS). Private ambulance records document the Veteran was at a bowling alley in Lady Lake, Florida, when he complained of nausea, weakness, vomiting, and dizziness. He then experienced a syncopal episode while in the care of Lake EMS medics. Provide ambulance personnel provided him with Zofran to help with his stomach pain. His nausea and vomiting subsided on the way to the hospital. At 2:55pm on the same afternoon, the Veteran arrived by ambulance at The Villages Regional Hospital [hereinafter “The Villages”] in The Villages, Florida. This is a private facility. He complained of nausea, dizziness, and weakness. The onset of symptoms was two days earlier. He condition had worsened while bowling that afternoon, as he had vomited and collapsed. Upon admission to the private hospital, his symptoms began to improve, while being treated with fluids and medications in the emergency room. He did not appear “acutely ill or toxic.” In several private hospital records dated on March 10, 2015, it was noted that his condition was “stable.” By 8:25pm on March 10, 2015, in a private ED Chart from The Villages, the Veteran reported that “he feels significantly improved.” Nonetheless, he was admitted for medical observation and testing at The Villages for a total of four days. The diagnosis rendered was syncope (rule out arrhythmia vs. vasodepressor syncope) and hypotension. He remained hospitalized at The Villages for a total of four days from March 10th-13th of 2015. The private hospital records present in the claims file from The Villages for this time period are rather limited. The Veteran is not service-connected for any disability by VA. Thus, there is no dispute that his private hospitalization at The Villages from March 10th-13th of 2015 was for a nonservice-connected disability. He also did not receive any prior authorization from VA for this private hospitalization. The Veteran was 63 years old at the time of the private hospitalization. He had no health insurance at that time. VA already covered the costs of his ambulance transportation costs from Lake EMS and for his initial private hospitalization at The Villages for the day of March 10, 2015. Therefore, there are NO outstanding costs for the medical expenses associated with his March 10, 2015 ambulance transportation or with his initial March 10, 2015 private hospitalization at The Villages. However, VA did not cover the costs of the Veteran’s continuing inpatient hospitalization at The Villages from March 11th-13th of 2015. It follows that the Veteran has requested payment or reimbursement for the continuing costs of his unauthorized private hospitalization at The Villages from March 11th-13th of 2015. 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 (The Villages) to provide the Veteran with no cost private care from March 11th-13th of 2015. 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 2015 Agency of Original Jurisdiction (AOJ) decision on appeal and in the July 2015 Statement of the Case (SOC), the AOJ denied the Veteran’s medical expenses claim for his private hospitalization at The Villages for the time period from March 11th-13th of 2015. It was undisputed that a “medical emergency” existed and a VA facility was not “feasibly available” to the Veteran on March 10, 2015. See 38 C.F.R. §§ 17.53; 17.1002. Nonetheless, the basis for the denial was that on the afternoon of March 10, 2015, the Veteran’s condition had “stabilized,” such that he could have been transferred to a VA facility (the VAMC in Gainesville, Florida) 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 from March 11th-13th of 2015. See 38 C.F.R. §§ 17.53; 17.1002(c). In other words, a nearby VA facility had a bed available for the Veteran. There is also 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 The Villages from March 11th-13th of 2015. See 38 C.F.R. §§ 17.1001(d); 17.1005(b)-(c). In this regard, the AOJ emphasized that there was documentation in either VA or private hospital records of any attempt to transfer the Veteran from the Villages to a VA medical facility from March 11th-13th of 2015. For his part, the Veteran is requesting payment or reimbursement for his private hospitalization from March 11th-13th of 2015 at The Villages beyond the point of his stabilization. Simply stated, he wants the VA to cover the costs of his continuing inpatient hospitalization at The Villages for these three days. He reports receiving a private hospital invoice in the amount of $19,000. See June 2015 Notice of Disagreement (NOD). He is retired, on a fixed income, and thus does not have the resources to pay off this large of a medical invoice. 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 documents and associate them with the claims file: (1) the claim for payment or reimbursement (UB-04 or HCFA 1500), including any invoices from the private hospital and associated providers; (2) The May 20, 2015 decision on appeal (denial letter with appellate rights) for payment or reimbursement of unauthorized medical expenses, if available for printout. (In this regard, the July 2015 SOC listed these documents as being part of the record. But a review of the record reveals the neither document was 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 no VA CPRS records present in the claims file. But the Veteran has advised that he received his primary care treatment at the VA Community Based Outpatient Clinic (CBOC) in The Villages in 2015. Again, these VA treatment records are not present in the claims file. In addition, the Veteran indicated in his June 2015 NOD that he informed private hospital staff on March 10th or 11th of 2015 that he received his treatment through the VA. He also stated to private hospital staff at The Villages that he was available to be transferred to the VAMC in Gainesville for further hospitalization. He adds that the private hospital staff told him they faxed over all his information to the VAMC. Yet for reasons that are unclear, he was never transferred over to the VAMC in Gainesville, Florida. Therefore, the AOJ should obtain all VA telephone or administrative or medical records from the relevant VA facility(ies) located in Florida for the Veteran dated in the month of March 2015, as well as all VA treatment records for the year 2015 at the VA “The Villages” CBOC. Any additional VA telephone or administrative or medical records 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). 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 The Villages Regional Hospital located in The Villages, Florida dated during the Veteran’s entire inpatient stay from March 10th-13th of 2015, along with any associated private telephone or private administrative records dated in March 2015 from The Villages. At present, there are limited, incomplete private hospital records in the claims file from The Villages Regional Hospital for the time period from March 10th-13th of 2015. For example, the only private hospital records from this facility present in the claims file are the March 10, 2015 ED chart, a March 11, 2015 consultation, and one page of handwritten progress notes. There is no discharge report or history and physical report or nursing notes or administrative records from The Villages Regional Hospital for the time period from March 10th-13th of 2015. A complete set of the Veteran’s private hospital records for the time period from March 10th-13th of 2015 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, with the limited private hospital records in the claims file, the Board cannot substantiate the Veteran’s assertion that private hospital personnel at The Villages Regional Hospital contacted the VA facility regarding a potential transfer from March 10th-13th of 2015. For the private hospital records above dated from March 10th-13th of 2015, the Veteran has not completed the necessary authorization form (VA Form 21-4142) to secure complete private hospital records from The Villages Regional Hospital. 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, 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 July 2015 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 particular, the AOJ should review the most recent VA regulations addressing these topics, especially payment beyond the point of stabilization – 17.1005(c). In fact, 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 copies of the following missing documents, which are referenced in the July 2015 SOC, and associate them with the claims file: (a.) The claim for payment or reimbursement (UB-04 or HCFA 1500), including any invoices from the private hospital and associated providers. (b.) The May 20, 2015 decision on appeal (denial letter with appellate rights) for payment or reimbursement of unauthorized medical expenses, if available for printout. 2. The AOJ should obtain all VA telephone or VA administrative or VA treatment records for the Veteran dated in the month of March of 2015 from the relevant VA facility(ies) in Florida, as well as all VA treatment records dated for the year of 2015 at the VA Community Based Outpatient Clinic (CBOC) in The Villages. 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 Veteran for March 2015 or for the entire year of 2015, a response to that effect is required and should be documented in the file. (At present, there are no VA CPRS records present in the claims file. But the Veteran has advised that he received his primary care treatment at the VA CBOC in The Villages in 2015. However, no such VA treatment records are present in the claims file. In addition, the Veteran indicated in his June 2015 NOD that he informed private hospital staff on March 10th or 11th of 2015 that he received his treatment through the VA. He further stated to private hospital staff at The Villages that he was available to be transferred to the VAMC in Gainesville for further hospitalization. He adds that the private hospital staff told him they faxed over all his information to the VAMC. In any event, any additional VA telephone or administrative or medical records may shed light on the circumstances the Veteran’s 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 The Villages Regional Hospital located in The Villages, Florida dated during the Veteran’s inpatient stay from March 10th-13th of 2015, along with any associated private telephone or private administrative records dated in March 2015 from this private hospital. 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 March 10th-13th of 2015, 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 The Villages Regional Hospital located in The Villages, Florida dated during the Veteran’s inpatient stay from March 10th-13th of 2015, 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 The Villages Regional Hospital dated in March 2015, if he has them in his possession. 4. After completion of steps 1-3 above, the AOJ should readjudicate the issue on appeal of payment or reimbursement of unauthorized medical expenses incurred during a non-VA hospitalization at The Villages Regional Hospital from March 11th-13th of 2015. (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 the updated VA regulations for payment “beyond the point of stabilization.” In fact, these VA regulations   addressing payment “beyond the point of stabilization” 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.