Citation Nr: 21070407 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 02-17 787A DATE: November 23, 2021 ORDER Entitlement to payment or reimbursement for the cost of medical services received at Providence Hospital Northeast on September 27, 2001 is granted, subject to the criteria governing payment of monetary benefits. FINDING OF FACT The treatment received at Providence Hospital Northeast on September 27, 2001 was for a condition for which a prudent layperson would have believed that immediate medical attention was necessary to avoid hazard to health, and a Department of Veterans Affairs (VA) facility was not feasibility available to provide the treatment. CONCLUSION OF LAW The criteria for payment or reimbursement for the cost of medical services received at Providence Hospital Northeast on September 27, 2001 are met. 38 U.S.C. § 1725; 38 C.F.R. §§ 17.1000, 17.1001, 17.1002; 66 FR 36467, 36471 (July 12, 2001). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1974 to June 1996. The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in March 2021. A transcript is of record. Entitlement to payment or reimbursement for the cost of medical services received at Providence Hospital Northeast on September 27, 2001 The Board notes that changes were made to the provisions of 38 U.S.C. § 1725 effective October 10, 2008 pursuant to the Veterans' Mental Health and Other Care Improvement Act of 2008, Pub. L. No. 110-387, § 402(a), 122 Stat. 4123, and effective February 1, 2010 pursuant to the Expansion of Veteran Eligibility for Reimbursement Act, Pub. L. No. 111-137, § 1(c)(2), 123 Stat. 3495, 3496. However, this claim is being granted under the versions of applicable statutes and regulations in effect as of September 27, 2001, including 38 U.S.C. § 1725. 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); 38 C.F.R. § 17.52(a) (2001). However, the Veteran has never contended, and the evidence does not demonstrate, that she received prior VA written authorization for her private treatment on September 27, 2001. Therefore, application of 38 U.S.C. § 1703(a) for reimbursement of authorized private treatment is unwarranted. The issue of prior authorization is thus not applicable. The Veterans Millennium Health Care and Benefits Act was enacted on November 30, 1999, and took effect 180 days after the date of enactment, i.e., on May 29, 2000. See Pub. L. 106-117, Title I, Subtitle B, § 111, 113 Stat. 1556. A VA interim final rule implementing the new statute provides that its effective date is May 29, 2000, and that VA would make retroactive payments or reimbursements for qualifying emergency care furnished on or after that date. See 66 Fed. Reg. 36,467 (2001). In this case, the service rendered occurred after the effective date of the "Millennium Bill Act." The Veterans Millennium Health Care and Benefits Act provides general authority for reimbursement for the reasonable value of emergency treatment furnished in a non-Department facility to those veterans who are active Department health-care participants (i.e., enrolled in the annual patient enrollment system and recipients of Department hospital, nursing home, or domiciliary care under such system within the last 24-month period) and who are personally liable for such non-VA treatment and not eligible for reimbursement under the provisions of 38 U.S.C. § 1728. See 38 U.S.C. § 1725; 38 C.F.R. § 17.1000-1008; 66 FR 36467, 36471 (July 12, 2001). To be eligible for payment or reimbursement for emergency services for non-service connected conditions in non-VA facilities, 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) The claim for payment or reimbursement for any medical care beyond the initial emergency evaluation and treatment is for a continued medical emergency of such a nature that the veteran could not have been safely discharged or transferred to a VA or other Federal facility (the medical emergency lasts only until the time the veteran becomes stabilized); (e) 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; (f) The veteran is financially liable to the provider of emergency treatment for that treatment; (g) The veteran has no coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the emergency treatment; (h) 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 (i) The veteran is not eligible for reimbursement under 38 U.S.C. § 1728 for the emergency treatment provided. See 38 C.F.R. § 17.1002; 66 FR 36467, 36471 (July 12, 2001). The Court of Appeals for Veterans Claims (Court) has found it clear from the plain language of 38 U.S.C. § 1725(b)(3)(B) that Congress intended to reimburse a veteran for that portion of expenses not covered by a health-plan contract, to include Medicare, when the amount covered by the third party was less than total. Staab v. McDonald, 28 Vet. App. 50, 55 (2016). Specifically, the applicable parts of the governing statute in the present case, 38 U.S.C. § 1725(b)(3)(B) and (C), state that a veteran is personally liable for emergency treatment if the veteran has no entitlement to care or services under a health-plan contract or has no other contractual or legal recourse against a third party that would, in whole, extinguish such liability to the provider. Simply stated, reimbursement is prohibited only if the health-plan contract wholly extinguishes the Veteran's liability. The implementing VA regulation, 38 C.F.R. § 17.1002(f), was amended in January 2018 to reflect the Court's holding in Staab. Under the amended version of 38 C.F.R. § 17.1002(f), payment or reimbursement under 38 U.S.C. § 1725 for emergency treatment will be made if a Veteran does not have coverage under a health-plan contract that would fully extinguish the medical liability for the emergency treatment. The interim final rule became effective on January 9, 2018 and applies to all claims pending on or after April 8, 2016, which includes the Veteran's particular claim. See 83 Fed. Reg. 974 (Jan. 9, 2018). Therefore, the amended regulation allows for payment or reimbursement through VA for the balance of medical expenses that remains when a third-party payer would extinguish only part of a veteran's liability. The claims form shows that the Veteran did not have other health insurance at the time of the September 27, 2001 treatment. Therefore, payment for the private treatment was not and could not be fully extinguished by a health-plan contract. As of September 27, 2001, service connection was in effect for cervical spine degenerative disc disease, rated at 20 percent; degenerative disc disease of the lumbosacral spine, rated 10 percent; maxillary sinusitis, rated 10 percent; and patellofemoral pain syndrome of the right and left knees, scar laceration of the left leg with sural nerve involvement, and left tarsal tunnel syndrome of the right and left knees, all rated as noncompensable. The combined rating was 40 percent. The September 27, 2001 treatment was not for a service-connected disability. The Veteran did not have a total and permanent service-connected disability rating, and this treatment was not for a service-connected disability that meets the criteria for payment or reimbursement or for a disability that was aggravating a service-connected disability. Likewise, the treatment was not for any injury or an illness incurred in relation to participation in a vocational rehabilitation program. Consequently, the Veteran is not eligible for payment or reimbursement for the claimed emergency treatment under 38 U.S.C. § 1728. See 38 C.F.R. § 17.120. A condition that a prudent layperson would reasonably expect that delay in seeking medical attention would be hazardous to life or health can include one manifested by severe pain that results in serious dysfunction of a body part. 38 C.F.R. § 17.1002(b); 66 FR 36467, 36471 (July 12, 2001). At VA treatment on September 24, 2001, the Veteran presented with pain on the left side of her face and neck for two weeks. She was also diagnosed with a urinary tract infection. The September 27, 2001 treatment records from Providence Hospital Northeast indicate that the Veteran presented at 2:00 a.m. and reported heart palpitations for two hours and pain in her neck and upper shoulders. She had been having neck and left shoulder pain for two weeks and intermittent racing of the heart for a week. It was noted that she had passed out and the palpations were still present with some improvement. The clinical impression was neck pain (myofascial) and palpations. The Veteran testified at the March 2021 Board hearing that on September 27, 2001 she was lying on the floor and could not get up, and her son called an ambulance. Furthermore, this was different than the palpitations she had been having for the prior two weeks. The Veteran meets the requirement of 38 C.F.R. § 17.1002(a) that the treatment be provided in a hospital emergency department. The Veteran is also financially liable for the treatment. A claims form shows that the Veteran was responsible for paying $150.00 to Providence Northeast Hospital for the September 27, 2001 emergency department treatment. See 38 C.F.R. § 17.1002(e); 66 FR 36467, 36471 (July 12, 2001). Regarding the potential feasible availability of a VA or other federal facility, the Veteran testified that there were not any local VA emergency rooms that were open. It is also noted that the VA medical center in Columbia is 17 miles from her home, while Providence Hospital Northeast is 8 miles away. Given that the Veteran had heart palpations different than what she previously experienced, an attempt to wait to be treated until she could get to the VA emergency room would not have been considered prudent by a layperson, even if the VA emergency room in Columbia was open. See 38 C.F.R. § 17.1002(c). In addition, a prudent layperson who possessed an average knowledge of general health and medicine would reasonably have expected that the absence of immediate treatment for the palpations would have placed the health of the Veteran in serious jeopardy or caused serious impairment to bodily functions, given the symptomatology and that the palpitations were different than the ones she had been having in the prior week. See 38 C.F.R. § 17.1002(b). The neck pain does not meet this standard because the Veteran had been having it for two weeks, and it is not clear from the treatment records that it had worsened. The claim is therefore being granted under 38 U.S.C. § 1725 for a disability that is not related to service rather than under 38 U.S.C. § 1728 as due to the service-connected cervical spine disability. Finally, there is no indication that the Veteran does not meet the additional criteria for reimbursement for emergency treatment under 38 U.S.C. § 1725, nor has the VAMC made any such finding. See 38 C.F.R. § 17.1002(d), (f)-(h). VA treatment records show that the Veteran was enrolled in the VA health care system and had been treated within the 24 month period prior to September 27, 2001. See 38 C.F.R. § 17.1002(d). In addition, the Veteran did not have other health insurance that would fully pay for the September 27, 2001 treatment, the condition was not caused by a workplace accident, and coverage is not available under 38 U.S.C. § 1728. See 17.1002(f)-(h). The Veteran's appeal is therefore granted, subject to the provisions governing the amount of payment or reimbursement that is available under 38 U.S.C. § 1725. 38 C.F.R. § 17.1005. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott Shoreman, 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.