Citation Nr: 21077055 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 17-17 140A DATE: December 28, 2021 ORDER Payment or reimbursement of medical expenses incurred from July 20, 2016 to September 22, 2016, at Oregon State Hospital (OSH) is denied. FINDING OF FACT The treatment provided to the Veteran from July 20, 2016 to September 22, 2016, at OSH was hospital care for a patient of an institution of a state government agency, and the agency had a duty to provide such treatment. CONCLUSION OF LAW The criteria for payment or reimbursement of medical expenses incurred from July 20, 2016 to September 22, 2016, at OSH have not been met. 38 U.S.C. §§ 1703, 1710, 5107; 38 C.F.R. §§ 17.36-38, 17.52, 17.4020. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1987 to August 1987 and from June 1988 to January 1992. This appeal is before the Board of Veterans' Appeals (Board) from a December 2016 decision of the Department of Veterans Affairs (VA) Veterans Health Administration. The Veteran seeks payment of medical expenses provided from July 20, 2016 to September 22, 2016, at OSH, while he was committed subsequent to arrest on various felony and misdemeanor charges. The Veteran originally requested a hearing before the Board in his February 2017 VA Form 9. A hearing was scheduled for August 2021. However, prior to the hearing date, the Veteran cancelled the hearing. Thus, the Board considers the hearing request withdrawn. 38 C.F.R. § 20.704. I. Legal Criteria Pursuant to 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, as authorized under 38 U.S.C. § 1710, may contract with non-VA facilities for care in accordance with the provisions of the relevant regulations. When demand is only for infrequent use, individual authorizations may be used. 38 U.S.C. § 1703; 38 C.F.R. § 17.52. In general, if VA is to provide payment or reimbursement of medical expenses incurred in connection with a Veteran's care at a non-VA hospital, the care must be authorized in advance. See 38 U.S.C. § 1703; 38 C.F.R. § 17.4020. Whether treatment was authorized is a factual, not a medical, determination. Similes v. Brown, 5 Vet. App. 555 (1994). 38 U.S.C. § 1710 establishes eligibility requirements and conditions for receiving medical services from VA, and provides that "[n]othing in this section requires the Secretary to furnish care to a veteran to whom another agency of Federal, State, or local government has a duty under law to provide care in an institution of such government." 38 U.S.C. § 1710 (f). 38 C.F.R. § 17.38 sets forth the hospital, outpatient, and extended care services that constitute the "medical benefits package" provided to Veterans enrolled in the VA Healthcare System. See 38 C.F.R. § 17.36-38. Under this regulation, the "medical benefits package" does not include "[h]ospital and outpatient care for a veteran who is either a patient or inmate in an institution of another government agency if that agency has a duty to give the care or services. This exclusion does not apply to veterans who are released from incarceration in a prison or jail into a temporary housing program (such as a community residential re-entry center or halfway house)." 38 C.F.R. § 17.38 (c)(5). When, after careful consideration of all evidence a reasonable doubt arises regarding any point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). II. Background The Veteran was arrested on July 2, 2016 on various misdemeanor and felony charges and booked at the Curry County Jail. Pursuant to a court order, the Veteran was transferred to OSH on July 20, 2016. See September 2016 OSH Discharge Summary. The Veteran was transferred back to the Curry County Jail on September 22, 2016. Id. A review of the Veteran's VA treatment records shows that VA was unable to reach the Veteran in early August 2016 and was eventually informed by his brother that he was "in trouble" and sent to a hospital in Salem. OSH contacted VA on September 19, 2016 to inform his VA medical provider that the Veteran would be discharged that week and taken to jail. In a September 23, 2016 treatment note, the Veteran's VA doctor noted that neither he nor the Veteran's VA social worker was aware that the Veteran was in jail or discharged from OSH. As reflected in its December 2016 decision and January 2017 statement of the case, the agency of original jurisdiction denied the Veteran's claim on the basis that the medical services provided at OSH from July 20 to September 22, 2016, were provided to him as a patient in an institution of another government agency that had a duty to provide the services. Therefore, VA was prohibited from making payments for such services under 38 C.F.R. § 17.38 (c)(5). As reflected in his February 2017 substantive appeal, the Veteran asserts that as he was temporarily detained and released by the Curry County Jail, there was no duty to give care or services, and therefore 38 C.F.R. § 17.38(c)(5) is not applicable in his case. The Veteran further asserts that VA should pay for his treatment at OSH as he was committed due to his service-connected schizoaffective disorder. The Veteran states that he was not violent and that in the past the police had always taken him to a hospital and not to jail. The Veteran asserts that VA has paid for his past hospitalizations, citing as an example that VA had paid for a past hospitalization at a state hospital when VA sent him to that hospital. Finally, the Veteran asserts that the applicable regulation applies to "longterm situations such as permanent incarceration" and not to his temporary legal situation. III. Analysis The Veteran's claim for payment or reimbursement must be denied. Initially, there is a question of whether, regardless of the provisions of 38 C.F.R. § 17.38, the Veteran's hospital treatment at OSH from July 20 to September 22, 2016, can be considered as having been authorized by VA pursuant to 38 U.S.C. § 1703. In this regard, the Board notes that there is no indication in VA records that payment for the Veteran's OSH treatment had been explicitly authorized or approved by VA prior to his treatment at OSH, as generally required under 38 U.S.C. § 1703. VA treatment records show that VA was not aware of the Veteran's hospitalization at OSH until after he was committed. However, the Board notes that under certain circumstances, depending on VA's involvement in such activity as the arrangement and transfer of a Veteran from a VA facility to a non-VA facility, such activity may be considered VA authorization of non-VA medical treatment, even if such authorization had not been explicit or come from personnel charged with such authorizations. See Cantu v. Principi, 18 Vet. App. 92, 104 (2004) (finding prior VA authorization of treatment in a non-VA facility had been given where a VA physician and other VA personnel directed that the appellant be transferred from the VA facility to a non-VA facility through its emergency room, directed that the transfer be done by ambulance, and called the ambulance service for the transfer and, prior to that transfer, the non-VA facility and received approval that the appellant would be accepted there). Regardless, without determining whether any such actions on the part of VA in this case could have been considered to implicitly constitute VA authorization of non-VA treatment under different circumstances than here, the Board determines that the claim for payment for expenses incurred from July 20, 2016 to September 22, 2016, at OSH must be denied because it is barred by 38 C.F.R. § 17.38(c)(5). 38 C.F.R. § 17.38(c)(5) plainly states that the benefits provided to Veterans enrolled in the VA Healthcare System do not include hospital and outpatient care for a Veteran who is either a patient or inmate in an institution of another government agency if that agency has a duty to give the care or services; the provision is based in 38 U.S.C. § 1710, providing that "[n]othing in this section requires the Secretary to furnish care to a veteran to whom another agency of Federal, State, or local government has a duty under law to provide care in an institution of such government." The Veteran had hospital care as a patient at OSH from July 20, 2016 to September 22, 2016. OSH is an institution operated by the state government agency of OHA, which admits committed patients. See Or. Rev. Stat. § 426.010. As in the Veteran's case, patients must be committed by a circuit court in a county of Oregon. Or. Rev. Stat. § 426.060(1). OSH has a duty to provide "the care, custody and treatment required for mental and physical health and safety" of such committed patients. Or. Rev. Stat. § 426.072(2)(a). Therefore, the treatment provided to the Veteran from July 20, 2016 to September 22, 2016, was hospital care for a patient of an institution (OSH) of another government agency (OHA), and the agency had a duty to provide such treatment, services, and hospital care. Accordingly, the provisions of 38 C.F.R. § 17.38 (c)(5) are applicable in this case, and VA is barred from paying for the treatment in question. The Board acknowledges the Veteran's contentions that detainment at the Curry County Jail was temporary in nature, and that he should have been taken to the hospital and not to jail prior to his commitment at OSH. However, the evidentiary record is clear that the Veteran was in fact arrested and charged with both misdemeanor and felony charges, that he remained at the Curry County Jail for more than two weeks, that he was transferred to OSH pursuant to a court order as he was unable to aid and assist in the legal charges against him, and that he was transferred back to jail upon discharge from OSH. To the extent that the Veteran asserts that he was not "permanently incarcerated" at the Curry County Jail, the Board clarifies that its analysis is based on the care received by the Veteran at OSH as a result of involuntary commitment and that OSH is not a correctional facility. However, the restriction on payment provided in 38 C.F.R. § 17.38 (c)(5) is not limited to correctional facilities. The Veteran has not argued that (1) he was not a patient of OSH; (2) OSH is not an institution of a state government agency (OHA); or (3) OSH did not, at the time of such treatment during the Veteran's period of commitment, have a duty to give the care or services provided. The Board also acknowledges the Veteran's assertion that VA paid for his care at OSH previously when he was sent to OSH by a VA facility. However, again, the Veteran was ordered to be committed by an Oregon state judge while incarcerated at a county jail, was accepted by OSH, and was treated by OSH from July 20, 2016 to September 22, 2016, as an involuntarily committed patient to whom it had a duty to provide care. There is no indication that the Veteran was transferred from a VA facility in this case. While the Board appreciates the Veteran's position, there is no explanation of how such circumstances provide an exception to 38 C.F.R. § 17.38 (c)(5) or render it inapplicable. In this case, the treatment provided to the Veteran from July 20, 2016 to September 22, 2016, at OSH was hospital care for a patient of an institution of a state government agency, and the agency had a duty to provide such treatment. Accordingly, payment or reimbursement of medical expenses incurred from July 20, 2016 to September 22, 2016, at OSH must be denied. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Bynum, Associate 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.