Citation Nr: 1504302	
Decision Date: 01/29/15    Archive Date: 02/09/15

DOCKET NO.  12-29 333	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Medical Center in Canandaigua, New York


THE ISSUES

1.  Entitlement to payment or reimbursement for medical expenses incurred at Samaritan Medical Center (SMC) in Watertown, New York from November 11, 2011 to November 14, 2011.  

2.  Entitlement to payment or reimbursement for medical expenses incurred at SMC from December 4, 2011 to December 8, 2011.    


REPRESENTATION

Appellant represented by:	Daniel Kransegor, Attorney


ATTORNEY FOR THE BOARD

Dan Brook, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from September 1967 to August 1970 and from March 1974 to May 1975.  

This matter comes before the Board of Veterans' Appeals (Board) from December 2011 and February 2012 decisions of the Canandaigua VA Medical Center (VAMC).

The issue of entitlement to payment or reimbursement for medical expenses incurred at SMC from December 4, 2011 to December 8, 2011 is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The Veteran entered SMC for emergency treatment on November 9, 2011 and was not stable for transfer to his home until November 14, 2011, as VA had not arranged for his needed medications to be delivered to his home until this date.    


CONCLUSION OF LAW

The criteria for reimbursement or payment of private medical expenses incurred at Samaritan Medical Center (SMC) in Watertown, New York from November 11, 2011 to November 14, 2011 have been met.  38 U.S.C.A. §§ 1725 (West 2014); 38 C.F.R. §§ 17.1000-17.1008 (2014).






REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), includes enhanced duties to notify and assist claimants for VA benefits.  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(a).  Given the favorable disposition of the claim for payment or reimbursement of private medical expenses decided herein, the Board finds that all notification and development action needed to fairly adjudicate this claim has been accomplished.

II.  Analysis

The instant claim decided herein is governed by 38 U.S.C.A. § 1725 and the accompanying regulations found at 38 C.F.R. § 17.1000-1008, which pertain to emergency treatment received at a non-VA facility for non-service connected disabilities. 

Generally, in order to be eligible for payment or reimbursement for emergency services under such circumstances, a Veteran must show that his treatment satisfies 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) 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; 

(e) The Veteran is financially liable to the provider of emergency treatment for that treatment; 

(f) The Veteran has no coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the emergency treatment; 

(g) 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 

(h) The Veteran is not eligible for reimbursement under 38 U.S.C.A. § 1728 for the emergency treatment provided.   38 U.S.C.A. § 1725; 38 C.F.R. § 17.1002. 

Failure to satisfy any one of the above criteria precludes VA from paying or reimbursing unauthorized private medical expenses.

The evidence shows that the Veteran seen in the SMC emergency room on November 9, 2011 due to an exacerbation of COPD with increased secretion and shortness of breath, along with an inability to get his medication from the VA.  He was given IV Solu-Medrol and admitted to the hospital and started on his medication regimen of DuoNeb, prednisone, Avelox, Aldactone, Symbicort, Spiriva, aspirin and Nexium.  Social Services was contacted to check on when the Veteran could receive his medications from VA.

A November 10, 2011 SMC inpatient progress note indicates that a social worker was able to speak with the VA and the Veteran's medication was scheduled to be delivered to his home the following day, November 11th.  Thus, the plan was to try to discharge the Veteran home on November 11th.  A subsequent November 2011 progress not shows that the Veteran's condition was improving.  However, he had spoken with the social worker and was informed that his medication was still not available at his home.  It was noted that SMC would try to resolve the medication matter.  If so, the Veteran was to be discharged that day.  If not, the Veteran was to stay at the hospital until Monday (November 14th).  A November 14, 2011 discharge summary then indicates that the Veteran was to be discharged that day if his medication was available at home.  As it turned out that the medication was available, the Veteran was discharged on November 14, 2011.  

A November 9, 2011VA nursing note indicates that VA had been informed that the Veteran had been admitted to SMC with exacerbation of COPD/pneumonia.  It was noted that orders were placed for Prednisone, Avelox and Aldactone for a VA physician, Dr. S., to approve.  The plan was to send the medication to the Veteran via overnight mail.  

The VAMC determined that the Veteran was eligible for payment or reimbursement of the expenses incurred at SMC up until November 11, 2011.  Thus, the VAMC found that he that he met all the applicable eligibility criteria under 38 C.F.R. § 17.1002.  However, in relation to the time frame from November 11, 2011 to November 14, 2014, the VAMC found that the Veteran was stable for transfer to a VA facility and thus, ineligible for payment or reimbursement.  See 38 C.F.R. § 17.1005(b).  

As the VAMC has already awarded payment or reimbursement for the SMC expenses incurred from November 9, 2011 to November 11, 2011, it is evident that the Veteran met all the applicable eligibility criteria for this award under 38 C.F.R. § 17.1002.  Thus, the only remaining question on appeal is what date, within the time frame from November 11th to November 14th, the Veteran can be considered to have been stable for transfer.  Id.  As alluded to above, the evidence indicates that SMC's discharge plan was to send the Veteran home as soon as VA had arranged for his needed medications to be delivered to his home.  As this delivery did not occur until November 14th, the evidence indicates that SMC had no choice but to keep the Veteran in the hospital until this date.  In other words, as his needed medications would not have been available to him at home if he was discharged earlier, the he was not stable for discharge home until November 14, 2011.  

The VAMC did find that the Veteran was stable for transfer to a VA facility as of November 11, 2014.  However, the evidence indicates that throughout the Veteran's SMC stay, the SMC social worker was in communication with VA personnel and that a transfer was never contemplated because VA had informed SMC that the Veteran's medication would be available at his home by November 11th.  Acting on this information, SMC planned to discharge the Veteran on this date but then reasonably continued to treat him on an impatient basis until the medication was actually delivered on November 14th.   The evidence indicates that transfer to a VA or other federal facility was never a viable option, as the treatment plan endorsed by VA had always been to send the Veteran home as soon as VA had arranged the medication delivery.  Thus, there is no basis for finding that the Veteran could have been transferred to a VA or other federal facility at any time prior to November 14th.  See 38 C.F.R. § 17.1005(b).   Accordingly, payment or reimbursement of the medical expenses incurred at SMS from November 12, 2011 to November 14, 2011 is warranted.  


ORDER

Payment or reimbursement for medical expenses incurred at Samaritan Medical Center (SMC) in Watertown, New York from November 11, 2011 to November 14, 2011 is granted subject to the regulations governing the payment of monetary awards.


REMAND

In the February 2012 decision, the VAMC approved payment or reimbursement of the medical expenses incurred at SMC up until December 4, 2011 but denied payment or reimbursement of the medical expenses incurred from December 4, 2011 to December 8, 2011, finding that the Veteran was stable for transfer to a VA or federal facility on December 4, 2011.  The Board notes that the SMC medical documentation of record pertaining to this hospital stay appear incomplete, as they do not span the entire hospitalization and do not appear to include a discharge summary.  Consequently, the Board finds that a remand is appropriate for the AOJ to attempt to obtain all SMC records pertaining to the Veteran's hospitalization at that facility from December 1, 2011 to December 8, 2011.  On remand, the AOJ should also obtain any VA fee basis or other medical records pertaining to the Veteran from this time frame, including any record of communication between SMC and VA concerning the Veteran's hospitalization.  

Accordingly, the case is REMANDED for the following action:

1.  Obtain any VA fee basis or other medical records pertaining to the Veteran for the time period from December 1, 2011 to December 8, 2011, including any records of communication between VA and Samaritan Medical Center concerning the Veteran's hospitalization.  

2.  With an appropriate release from the Veteran, obtain complete records of the emergency room and inpatient treatment the Veteran received at Samaritan Medical Center in Watertown, New York from December 1, 2011 to December 8, 2011, including any records of communication between SMC and VA concerning the Veteran's hospitalization.  

3.  Readjudicate the claim.  If it remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the opportunity to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order.  No action is required of the appellant until he is notified.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




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



Department of Veterans Affairs