07-24 090

• Court: Board of Veterans' Appeals
• Decided: March 8, 2010
• Docket: 07-24 090
• Status: Unpublished

Opinion

Citation Nr: 1008507 Decision Date: 03/08/10 Archive Date: 03/17/10

DOCKET NO. 07-24 090A ) DATE ) )

On appeal from the Department of Veterans Affairs North Florida/South Georgia Veterans Health System

THE ISSUE

Entitlement to payment or reimbursement for medical services provided by Halifax Hospital on April 14, 2006 pursuant to 38 U.S.C.A. § 1728.

REPRESENTATION

Appellant represented by: Disabled American Veterans

WITNESSES AT HEARING ON APPEAL

Veteran and his spouse

ATTORNEY FOR THE BOARD

J. Connolly, Counsel INTRODUCTION

The Veteran had active service from March 1984 to June 1987.

This case is before the Board of Veterans' Appeals (Board) on appeal from a decision by the Department of Veterans Affairs (VA) Medical Center in Gainesville, Florida. The Veteran disagreed with that decision and was sent a statement of the case (SOC) from the VA North Florida/South Georgia Veterans Health System. He then perfected an appeal. The Veteran testified with his spouse before the undersigned in April 2009.

The issue of entitlement to payment or reimbursement for medical services provided by Halifax Hospital on April 14, 2006 pursuant to the Veterans Millennium Health Care and Benefits Act (Millennium Bill Act) was raised by the representative in September 2007, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.

FINDINGS OF FACT

1. The Veteran received medical treatment provided by Halifax Hospital on April 14, 2006.

2. VA payment or reimbursement of the costs of the private medical care provided by Halifax Hospital on April 14, 2006, was not authorized prior to the Veteran's undergoing that treatment and an application was not made to VA within 72 hours after the hour of admission for authorization.

3. The Veteran is service-connected for brain syndrome, rated as 50 percent disabling; tinnitus, rated as 10 percent disabling; migraine headaches, rated as 10 percent disabling; disabilities of each ankle, each rated as 10 percent disabling; facial scars, rated as non-compensable; and jaw disability, rated as non-compensable. His combined rating is 70 percent and he has been awarded a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).

4. The medical treatment provided by Halifax Hospital on April 14, 2006 was not for a medical emergency.

CONCLUSIONS OF LAW

1. The criteria for payment or reimbursement for medical services provided by Halifax Hospital on April 14, 2006, based on prior authorization, is not warranted. 38 U.S.C.A. § 1703 (West 2002 & Supp. 2009); 38 C.F.R. § 17.54 (2009).

2. The criteria for payment or reimbursement for medical services provided by Halifax Hospital on April 14, 2006, under 38 U.S.C.A. § 1728 have not been met. 38 U.S.C.A. §§ 1710, 1728 (West 2002 & Supp. 2009); 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120, 17.121 (2009).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the claimant's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326.

Because the claim in this case is governed by the provisions of Chapter 71 of Title 38 of the United States Code, the VCAA and its implementing regulations are not applicable to such claims. See Barger v. Principi, 16 Vet. App. 132, 138 (2002) and Lueras v. Principi, 18 Vet. App. 435 (2004). Notwithstanding, the Board has reviewed the case for purposes of ascertaining that the claimant has had a fair opportunity to present arguments and evidence in support of his claim for reimbursement of medical expenses. In short, the Board concludes from that review that the requirements for the fair development of the appeal have been met in this case and that the Veteran fully presented his arguments and evidence during the course of his claim, including at his personal hearing, and thereafter.

Payment or Reimbursement for Medical Services Provided by Halifax Hospital on April 14, 2006

The Veteran is service-connected for brain syndrome, rated as 50 percent disabling; tinnitus, rated as 10 percent disabling; migraine headaches, rated as 10 percent disabling; disabilities of each ankle, each rated as 10 percent disabling; facial scars, rated as non-compensable; and jaw disability, rated as non-compensable. His combined rating is 70 percent and he has been awarded a TDIU.

According to the Veteran, he injured his left thumb on April 12, 2006. He called his mother who is a nurse for advice regarding his injury. She told him to wrap it in ice, keep it elevated above his heart, and to seek medical attention if it worsened or swelled. Thereafter, the Veteran indicated that he experienced a lot of swelling, so he went to the VA Daytona Outpatient Clinic. However, when he arrived, the doors were locked and the security person told him that everyone was gone for the day and would not return as it was the beginning of a three day holiday (the clinic had closed early). The Veteran stated that he thought his arm was broken. The security person asked him whether he was 100 percent disabled and the Veteran told him that he was so rated. The security officer then said that he should go to Halifax Hospital. His wife then took him to Halifax Hospital. The Veteran related that his left hand was checked for fractures and was x-rayed. The physician indicated that his hand should be splinted and he should return in a week. The Veteran reported that he went back to VA after that for the follow-up treatment. The Veteran stated that he felt that this was an emergency because he might have had a broken bone and it seemed to be good common sense to seek treatment.

With regard to the billing, the Veteran explained that there were three bills, one for $25 which he had paid, one for $133 which he had paid, and one for $722 which he had not paid. Following the hearing, the Veteran clarified that Medicare had paid the last bill for $722, so he was only seeking reimbursement for the first two bills which he had already paid, i.e., $158.

A review of the medical records dated on April 14, 2006 from Halifax Hospital show that the Veteran presented with left hand pain. The examiner noted that the Veteran was in no apparent distress. His vital signs were taken without incident. The Veteran indicated that he had fallen the day before and injured his thumb. He rated the pain as an 8 out of 10. There was no numbness, tingling, or weakness of the extremity. The Veteran related that it hurt more when he tried to flex the finger. On physical examination, there was tenderness to palpation to the left metacarpophalangeal (MCP) joint and hypothenar eminence. There was no erythema, ecchymosis, or edema. He had decreased flexion, but had complete extension. The x-rays were unremarkable. The diagnosis was left thumb sprain. The Veteran was given Darvocet and was told to rest, use ice and elevation, and return to follow-up care with an orthopedist.

The Veteran's claim was disapproved by a VA physician because a VA facility was available to provide the non-emergent care given to the Veteran by the private facility.

Initially, the Board must make a factual determination as to whether VA gave prior authorization for the non-VA medical care provided by Halifax Hospital on April 14, 2006. See 38 U.S.C.A. § 1703(a); see also 38 C.F.R. § 17.54. This is a factual, not a medical, determination. See Similes v. Brown, 5 Vet. App. 555 (1994).

The law provides that, in connection with its statutory obligation to provide medical services to veterans, VA may contract for private care in certain limited circumstances, including cases where a medical emergency exists.

Pursuant to 38 U.S.C.A. § 1703(a), "When Department [of Veterans Affairs] facilities are not capable of furnishing . . . the care or services required, the Secretary, as authorized in [38 U.S.C.A. § 1710 or 1712], may contract with non-Department facilities in order to furnish" certain care, including: "Hospital care or medical services for the treatment of medical emergencies which pose a serious threat to the life or health of a veteran receiving medical services in a Department facility . . . until such time following the furnishing of care in the non-Department facility as the veteran can be safely transferred to a Department facility." 38 U.S.C.A § 1703(a)(3); 38 C.F.R. § 17.52.

The admission of a veteran to a non-VA hospital at the expense of VA must be authorized in advance. 38 C.F.R. § 17.54; see Malone v. Gober, 10 Vet. App. 539, 541 (1997); see also VAOPGCCONCL 1-95, at 9 (Mar. 31, 1995) ("Authorization in advance is essential to any determination as to whether the Department is or is not going to furnish the contract care."). In the case of an emergency that existed at the time of admission, an authorization may be deemed a prior authorization if an application is made to VA within 72 hours after the hour of admission. 38 C.F.R. § 17.54.

In this case, there is no evidence that the Veteran obtained prior authorization for payment of the private medical services provided Halifax Hospital on April 14, 2006. Likewise, although an authorization may be deemed a prior authorization if an application is made to VA within 72 hours after the hour of admission, no such application was made in this case. Although the Veteran said that a security guard told him to go the private hospital, this is not considered prior authorization as it was not provided by a person with the authority to make such a referral, such as a VA physician.

Accordingly, the Board must conclude that prior authorization for the private medical services provided by Halifax Hospital on April 14, 2006, was not obtained pursuant to 38 C.F.R. § 17.54, and that payment is not warranted for expenses incurred in conjunction with that treatment under 38 U.S.C.A. § 1703.

Alternatively, reimbursement for unauthorized medical expenses may be made pursuant to 38 U.S.C.A. § 1728.

Generally, in order to be entitled to payment or reimbursement of medical expenses incurred at a non-VA facility, a claimant must satisfy three conditions. There must be a showing that three criteria are met: (a) The care and services rendered were either: (1) for an adjudicated service-connected disability, or (2) for a non-service- connected disability associated with and held to be aggravating an adjudicated service-connected disability, or (3) for any disability of a veteran who has a total disability, permanent in nature, resulting from a service- connected disability, or (4) for any injury, illness, or dental condition in the case of a veteran who is participating in a rehabilitation program and who is medically determined to be in need of hospital care or medical services for reasons set forth in 38 C.F.R. § 17.47(i) (formerly § 17.48(j)) (2000); and (b) The services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health; and (c) No VA or other Federal facilities were feasibly available and an attempt to use them beforehand or obtain prior VA authorization for the services required would not have been reasonable, sound, wise, or practicable, or treatment had been or would have been refused. See 38 U.S.C.A. § 1728; 38 C.F.R. § 17.120; see also Zimick v. West, 11 Vet. App. 45, 49 (1998).

The Veteran's claim was denied because the services rendered were not a medical emergency. The Board agrees that this criterion is not met in this case. The Veteran has stated that he required emergency medical treatment since he had swelling and felt that a bone might be broken. An emergency is defined as "a sudden, generally unexpected occurrence or set of circumstances demanding immediate action." Hennessey v. Brown, 7 Vet. App. 143, 147 (1994).

In this case, the Veteran had the left thumb pain for 1-2 days, by his own admission. Thus, immediate action was not felt by the Veteran to be necessary, was not undertaken, and was not in fact necessary based on the eventual evaluation. The Veteran had pain in his thumb when he went to the private hospital, but he was not in apparent distress and his vital signs did not indicate distress. The Veteran was given rather minimal treatment and was discharged to home. There was no fracture and it was determined that he had a thumb sprain. Moreover, the VA physician reviewing the file felt that there was no emergency. The Veteran did not call for emergency services after suffering the fall, he followed the advice of a nurse, went to the hospital on his own with his wife, was noted to be ambulatory, and not in distress. Thus, it is not credible that it was his impression that an emergency existed. Although the Veteran needed medical treatment, the treatment was not required for an emergency situation.

Accordingly, the criteria of 38 U.S.C.A. § 1728 and 38 C.F.R. § 17.120 are not met and the claim must be denied.

ORDER

Payment or reimbursement for unauthorized medical services provided by Halifax Hospital on April 14, 2006, is denied.

____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs