Citation Nr: 21021373 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 19-02 940A DATE: April 12, 2021 ORDER Payment or reimbursement of medical expenses incurred on August 16, 2016, at Kalispell Regional Medical Center (KRMC) is denied. FINDING OF FACT The Veteran’s treatment at KRMC on August 16, 2016, was neither pre-authorized by the Department of Veterans Affairs (VA) nor provided for a medical emergency. CONCLUSION OF LAW The criteria for payment or reimbursement of medical expenses incurred KRMC on August 16, 2016, are not met. 38 U.S.C. §§ 1703, 1725, 5107; 38 C.F.R. §§ 17.52, 17.1000-1008, 17.4010, 17.4020. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1965 to February 1967. This appeal is before the Board of Veterans’ Appeals (Board) from a December 2016 decision of the VA Veterans Health Administration. In July 2019, the Board remanded the appeal to the agency of original jurisdiction (AOJ). 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 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(a)(3) (pertaining to services provided on or before June 6, 2019); see also 38 C.F.R. § 17.4010. Whether treatment was authorized is a factual, not a medical, determination. Similes v. Brown, 5 Vet. App. 555 (1994). The Board notes that, effective June 5, 2019, 38 C.F.R. § 17.54—providing that nonemergent, non-VA treatment must be authorized in advance—was removed and reserved by VA. See Veterans Community Care Program, 84 Fed. Reg. 26278, 26306 (June 5, 2019). However, the new provisions established in in that rule governing authorized non-VA care—codified at 38 C.F.R. § 17.4020—continue to provide that nonemergent, non-VA care must be authorized in advance of such treatment. 38 C.F.R. § 17.4020(a), (c)(1) (establishing that “VA may authorize emergency treatment after it has been furnished to a covered veteran” under certain circumstances). In the absence of prior appropriate authorization, the Veterans Millennium Health Care and Benefits Act provides general authority for reimbursement for the reasonable value of emergency treatment furnished in a non-VA facility to those Veterans who are active VA health-care participants (i.e., enrolled in the annual patient enrollment system and recipients of a VA 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. 38 U.S.C. § 1725; 38 C.F.R. §§ 17.1000-1008. At the time of the August 16, 2016, treatment in question, the Veteran did not have any service-connected disabilities, and his treatment was not for any injury or illness contracted in the course of a rehabilitative program. Therefore, the Veteran is not eligible for payment or reimbursement under 38 U.S.C. § 1728. See 38 U.S.C. § 1728; 38 C.F.R. § 17.120. VA regulations at 38 C.F.R. §§ 17.1000 through 17.1008 constitute the requirements under 38 U.S.C. § 1725 that govern VA payment or reimbursement for non-VA emergency services furnished to a veteran for nonservice-connected conditions. 38 C.F.R. § 17.1000. Under such regulations, payment or reimbursement under 38 U.S.C. § 1725 for emergency treatment will be made only if certain conditions are met, which are listed under 38 C.F.R. § 17.1002, and which include the following: (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 (this standard would be met if there were an emergency medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) that a prudent layperson who possesses an average knowledge of health and medicine could reasonably expect the absence of immediate medical attention to result in placing the health of the individual in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part); (c) A VA or other Federal facility/provider that VA has an agreement with to furnish health care services for veterans was not feasibly available and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson (as an example, these conditions would be met by evidence establishing that a veteran was brought to a hospital in an ambulance and the ambulance personnel determined the nearest available appropriate level of care was at a non–VA medical center). Payment or reimbursement of medical expenses incurred on August 16, 2016, at KRMC is denied. A claim form received in October 2016 reflects treatment at KRMC on August 16, 2016, resulting in expenses of $3,026.62. As reflected in its December 2016 denial letter and February 2019 statement of the case, the AOJ denied payment or reimbursement of the expenses from KRMC on the basis that the August 16, 2016, services had not been pre-authorized by VA and were not emergency services. VA clinical tracking records contain notations that such treatment was a procedure that was follow-up to gallbladder surgery the Veteran had had a month before. The Board, in its July 2019 remand, noted the Veteran’s assertions that the treatment in question was for a medical emergency and that VA personnel advised him to go to the emergency department. It further noted that the August 16, 2016, medical records from KRMC had not been obtained or associated with the file, that only VA treatment records from August 4, 2016, were associated with the file, and that there was not evidence that sufficient efforts had been made to obtain relevant private and VA medical records. It therefore requested the AOJ to make reasonable attempts to obtain all pertinent August 2016 medical records from both KRMC and VA. In letters dated in February 2020, the AOJ made requests for the pertinent treatment records from KRMC. KRMC submitted treatment records dated in July 2016, September 2016, and August 2019, but none for the Veteran’s August 2016 treatment. The AOJ also sent letters to the Veteran in March and April 2020, asking the Veteran to contact KRMC and request that they send relevant treatment records to VA, or to obtain such records himself and submit them directly to VA. There is no indication that the Veteran responded. VA treatment records for the pertinent time period were also associated with the claims file. In a May 2020 supplemental statement of the case, the AOJ recounted its development efforts, stated the information available regarding the Veteran’s August 16, 2016, treatment at KRMC, and continued to deny the claim on the basis that the treatment was not pre-authorized by VA and was not emergent. Based on the evidence of record, the Veteran’s claim must be denied, as the evidence does not show that the August 16, 2016, treatment at KRMC was either pre-authorized by VA or provided for a medical emergency. The Board recognizes the Veteran’s assertions as reflected in his January 2017 notice of disagreement and February 2019 substantive appeal, but that they are unclear and inconsistent. In his February 2019 substantive appeal, the Veteran asserted that he was in septic shock when he arrived at KRMC and immediately admitted for emergency treatment, and that, prior to his treatment when he was having symptoms, he called VA and was told to go to the emergency room. In his January 2017 notice of disagreement, the Veteran asserted that, in July 2016, he had severe gallbladder symptoms, for which he received both private and VA treatment, and was at one point hospitalized at KRMC for sepsis in the gallbladder. He stated that a drain was inserted into his gallbladder, and he was treated for severe infection. He further stated that the surgeon needed his gallbladder to be rid of the infection before he could complete gallbladder removal. He stated that his VA and KRMC surgeons both agreed that his surgery should be performed at KRMC. The Veteran further reported complications due to infection following his second surgery, which required further treatment from KRMC. In his notice of disagreement, while describing multiple instances of treatment and surgeries for his gallbladder at VA and KRMC during July and the subsequent months of 2016, the Veteran never specifically identified his August 16, 2016, treatment, or described what such treatment was for or under what circumstances it occurred. However, he described his emergency treatment for sepsis as occurring in July, prior to his first gallbladder surgery that month, in contrast to his later assertion the February 2019 substantive appeal. VA and KRMC treatment records tend to support that the Veteran’s August 16, 2016, treatment was scheduled diagnostic examination in connection with gallbladder problems, including prior and later gallbladder surgeries. A July 27, 2016, KRMC hospital record reflects that the Veteran had been hospitalized since the day before with an assessment of acute cholecystitis, and was to be discharged; a VA treatment record that same day reflects that the Veteran underwent emergency gallbladder surgery with placement of a percutaneous cholecystectomy tube. An August 4, 2016, note states that the Veteran was using Medicare to have gallbladder removal surgery in 6 weeks, and that he currently had a Jackson Pratt drain in place. The next VA treatment note is dated September 7; there is no indication of VA treatment of, or interaction with, the Veteran on August 16. A September 10, 2016, record from KRMC reflects that the Veteran was 5 days post open cholecystectomy. He was hospitalized at KRMC again from September 12 to 14 for postoperative ileus, and was noted to have hepatobiliary iminodiacetic acid (HIDA) scan findings consistent with partial cholecystectomy. An October 2016 VA note reflects that the Veteran had been “doing better since gallbladder out.” Later VA records beginning in July 2018 reflect a past medical history of cholelithiasis with cholangiogram performed August 16, 2016, at KRMC; HIDA done in September 2016, with no bile leak; postoperative illuis; and robotic open cholecystectomy on September 7. Read together, the records reflect that, in July 2016, the Veteran had emergency gallbladder problems, assessed as acute cholecystitis, for which he underwent treatment that included surgery with placement of a percutaneous cholecystectomy tube. On August 4—the latest date of VA treatment prior to his August 16, 2016, treatment at KRMC—he reported a plan of using Medicare to have gallbladder removal surgery in 6 weeks. The Veteran then appears to have undergone cholangiogram on August 16, 2016, at KRMC, in connection with his previous surgery and upcoming, follow-up surgery. He then underwent cholecystectomy in early September 2016 (approximately 6 weeks after his August 4 VA treatment, as was planned), after which he had complications, including postoperative ileus, for which he was hospitalized at KRMC from September 12 to 14. There is no indication that the August 16, 2016, treatment at KRMC—which appears to have been cholangiogram diagnostic testing, in connection with his former surgery and scheduled upcoming surgery—was pre-authorized by VA, or was provided for any medical emergency. While the record reflects the involvement of both the Veteran’s VA and KRMC providers in his gallbladder treatment, there is no documentation or other indication in the record that VA had at any point authorized payment for the Veteran’s August 16, 2016, treatment at KRMC. The only notation of payment in such records was that made in connection with April 4, 2016, VA treatment, that payment for the Veteran’s surgery at KRMC in 6 weeks was to be through non-VA coverage (Medicare/Humana). Moreover, preauthorization by VA for the August 16, 2016, treatment has never specifically been asserted by Veteran; rather, in his January 2017 notice of disagreement and February 2019 substantive appeal, the Veteran asserted that such treatment was in connection with a medical emergency. However, it is reiterated that the record does not reflect that the August 16, 2016, treatment was emergent; but rather was scheduled diagnostic testing in connection with his ongoing care. The record contains no evidence to the contrary, except the Veteran’s statements which, as discussed above, are inconsistent with the record and each other. In the Veteran’s notice of disagreement, he appears to argue that his August 16, 2016, treatment was follow-up for, or in connection with, prior emergency treatment and, therefore, should be considered part of his medical emergency. However, under VA regulations, such situations do not qualify as emergency treatment. See 38 C.F.R. § 17.1002; see also 38 C.F.R. § 17.1005(b) (describing when VA considers that an emergency ends). Additionally, it is emphasized that the Veteran and KRMC have not provided records verifying the claimed medical services, or documenting precisely what treatment the Veteran received for which VA should be obligated to pay. Therefore, a preponderance of the evidence weighs against a finding that the Veteran’s treatment at KRMC on August 16, 2016, was either pre-authorized by VA or provided for a medical emergency. Accordingly, payment or reimbursement of medical expenses incurred on August 16, 2016, at KRMC is denied. See 38 U.S.C. § 5107. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Andrew Mack, 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.