Citation Nr: 1008507
Decision Date: 03/08/10 Archive Date: 03/17/10
DOCKET NO. 07-24 090A ) DATE
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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