Citation Nr: 0215595 Decision Date: 11/04/02 Archive Date: 11/14/02 DOCKET NO. 02-01 898A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Mountain Home, Tennessee THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred after August 14, 2001. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARINGS ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Clifford R. Olson, Counsel INTRODUCTION The veteran's active military service extended from October 1967 to March 1968 and from August 1985 to September 1990. The veteran resides within the jurisdiction of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. This matter comes before the Board of Veterans' Appeals (Board) from the VA Medical Center (VAMC) in Mountain Home, Tennessee, the agency of original jurisdiction (AOJ). The appellant's spouse presented testimony at a hearing before the AOJ in April 2002. In October 2002, a hearing was held before Gary L. Gick, who is the Board member making this decision and who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West Supp. 2001). A December 2001 rating decision deferred a decision on the issue of entitlement to compensation for right temporoparietal intracranial hemorrhage. Absent an initial decision by the RO, a notice of disagreement, a statement of the case and a substantive appeal, the Board does not have jurisdiction. Bernard v. Brown, 4 Vet. App. 384 (1994); Hazan v. Gober, 10 Vet. App. 511 (1997). The issue is referred to the RO for appropriate action. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. Service connection has not been established for any disability. 3. The veteran was admitted to Johnson City Medica Center (JCMC) on an emergency basis on August 8, 2001. 4. VA was contacted on August 10, 2001, and it was noted that the veteran was eligible for review for possible payment under the Millennium Health Care and Benefits Act. 5. The veteran was stabilized as of August 14, 2001, and benefits were paid by VA through that date. 6. The veteran remained hospitalized at JCMC through August 16, 2001, when he was transferred to Quillen Rehabilitation Hospital. CONCLUSION OF LAW The criteria for payment or reimbursement of unauthorized medical expenses incurred after August 14, 2001, have not been met. 38 U.S.C.A. § 1725 (West & Supp 2002); 38 C.F.R. § 17.1002(d) (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (herein "VCAA") became law shortly before this claim arose. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West Supp. 2001). Implementing regulations have been published. 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a)). Except for amendments not applicable here, the provisions of the regulations merely implement the VCAA and do not provide any rights other than those provided by the VCAA. 66 Fed. Reg. 45,629 (Aug. 29, 2001). The AOJ considered the case under the VCAA and the implementing regulations issued pursuant to that act. In addition to performing the pertinent development required under VCAA, the AOJ notified the veteran of his right to submit evidence. Thus, the Board finds that VA has completed its duties under the VCAA and the implementing regulations. Further, VA has completed the development of this case under all applicable law, regulations and VA procedural guidance. See also 38 C.F.R. § 3.103 (2001). Therefore, it would not abridge the appellant's rights under the VCAA and the implementing regulations for the Board to proceed to review the appeal. The veteran's application is complete. The statement of the case and a letter dated March 1, 2002, notified the veteran and his representative of the evidence necessary to substantiate the claim, the evidence which had been received, and the evidence to be provided by the claimant. Cf. Quartuccio v. Principi, 16 Vet. App. 183, 187, 188 (2002). VA has made reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate his claim for benefits. There is no reasonable possibility that further assistance would aid in substantiating the claim. VA has made reasonable efforts to obtain relevant records (including private records) which the veteran identified and authorized VA to obtain. Private and VA medical records, as well as medical opinions, have been obtained. The veteran has not reported that any other pertinent evidence might be available. See Epps v. Brown, 9 Vet. App. 341, 344 (1996). Notably, neither the veteran nor the representative has asserted that the case requires further evidentiary development under the VCAA or its implementing regulations. The status of the case was discussed at the October 2002 Board hearing. The veteran submitted medical evidence at that time. The evidence needed to substantiate the claim was discussed. It appeared that all relevant evidence was of record and that neither the veteran nor VA was expected to obtain additional evidence. The Millennium Health Care and Benefits Act, Pub. L. 106-117, which became effective in May 2000, provides general authority for the reimbursement of non-VA emergency treatment. 38 U.S.C.A. § 1725 (West & Supp 2002); Pub. L. 106-117, Title I, Subtitle B, § 111, 113 Stat. 1556 (1999) (providing that the November 30, 1999, Act shall take effect 180 days after the date of enactment). The term "emergency treatment" is defined as medical care or services furnished when VA or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be feasible, when such care or services are rendered in a medical emergency of such nature that a prudent lay person reasonably expects that delay in seeking immediate medical attention would be hazardous to life or health, and only until such time as the veteran can be transferred safely to a VA or other Federal facility. 38 U.S.C.A. § 1725(f)(I). Payment or reimbursement under 38 U.S.C.A. § 1725 for emergency services may be made only if all of the conditions set forth in 38 C.F.R. § 17.1002 (2001) are met. The following subsection is relevant to this case: the claim for payment or reimbursement for any medical care beyond the initial emergency evaluation and treatment is for a continued medical emergency of such a nature that the veteran could not have been safely transferred to a VA or other Federal facility (the medical emergency lasts only until the time the veteran becomes stabilized). 38 C.F.R. § 17.1002(d) (2001). The Evidence Records have been obtained from JCMC. These show that the veteran was admitted on an emergency basis on August 8, 2001. An acute right temporal parietal intracranial hemorrhage and an arteriovenous malformation were diagnosed. A right temporal parietal craniotomy with evacuation of the anteriocranial hemorrhage was performed. Progress notes in the following days chronicled his progress. Notes dated on August 13th show that the veteran was awake, alert, restless and talking. A physician recommended consultation for rehabilitation and directed that the Foley catheter and nasogastric feeding tube be discontinued and the veteran be started on a clear liquid diet, to advance as tolerated. Potassium chloride was added to his intravenous fluids. Notes show that rehabilitation placement was begun on August 13, 2001, and continued on August 14, 2001. A noted dated on August 15, 2001, shows that the veteran was examined and a doctor expressed the opinion that the veteran should be moved "out to rehab when possible." On August 16, 2001, a doctor determined that the veteran could be discharged. VA records show that the veteran's wife called on August 10, 2001, and reported his emergency treatment. It was noted that the veteran was receiving primary health care at the VAMC and had no insurance. His wife expressed a desire to transfer the veteran when stable. A noted date August 14, 2001, shows that a VA representative spoke with a case manager at JCMC and that the veteran's wife wanted him transferred to the VAMC for rehabilitation. The case manager was referred to Nurse Miller at the VAMC, but the case manager was not sure if the veteran was at that point yet. He would ask the doctor and call back. On August 15, Nurse Miller received a call from the JCMC case manager and faxed him the information needed for admission to the VAMC. On August 17, 2001, Nurse Miller noted that information had been received. The veteran had been transferred to Quillen Rehab Center the day before. The veteran met the criteria for transfer to the VAMC, but they did not have a bed available and it could be a "couple of weeks" before there was space. In January 2002, a VA medical professional reviewed the record and determined that the veteran was stable for transfer on August 14. Another VA medical professional reviewed the matter in February 2002, and again determined that the veteran was stable for transfer on August 14. In a letter dated in April 2002, Steven C. Hamel, M.D., told of treating the veteran for an acute intracerebral hemorrhage caused by an arteriovenous malformation. "While [the veteran] did not require acute in patient care, he certainly was not ready to return home and needed to be in some type of full care facility." In a letter dated in September 2002, Craig N. Bash, M.D., wrote: At your request, I reviewed this patient's medical record, literature references, and other information primarily from the VA medical file. Facts, Rational, Other Medical Opinions and References: It is clear from the record that this patient had a life threatening parietal-occipital AVM bleed with resultant stoke. It is also clear that he had emergent surgery by Dr. Hamel and following surgery needed acute rehabilitation. It is known that patients who do not receive timely rehab following major neurosurgical procedures often have secondary complications which can be life threatening. For example, patients are at high risk of developing intracranial swelling following major brain surgery at the 14-day post- op/trauma period. This patient was ready for transfer at about day five post-op. Therefore his risk for life threatening brain swelling occurred during his rehab period. If the patient had been put on hold somewhere for two weeks while a bed opened up in the VA system, he might have had an unrecognized fatal neurologic complication. Please note that Nurse Miller stated in her letter that the VA did not have a rehab bed available for this patient on 14 June 2001 and that no bed would be available for the foreseeable future two weeks. It would have been medically unsafe for this patient not to enter into an acute rehab process following his brain hemorrhage and surgery. IMPRESSION: It is my opinion that this patient had a medical need for acute rehab at the Quillen facility and that the two-week wait period was medically contraindicated. This opinion is consistent with the opinion in the file from Dr. Steven Hamel who stated that this patient needed a full care facility and a VA bed was not available at the time when rehab was needed. Analysis There is no question that the veteran was very seriously ill following his life threatening intracranial hemorrhage and that he need continuing care after his treatment at JCMC. However, the Board does not have unlimited discretion to pay benefits. In a case such as this, which concerns a non-service-connected disability, the law and regulations limit benefits narrowly. Specifically, benefits can only be paid for emergency treatment and can not be paid once the emergency has stabilized. The law provides for reimbursement for expenses incurred for emergency treatment. In pertinent part, it defines emergency treatment as medical care or services furnished "until such time as the veteran can be transferred safely to a Department or other federal facility." 38 U.S.C. § 1725(f)(1)(C) (2002). The implementing regulation provides that payment or reimbursement under 38 U.S.C. § 1725 for emergency services may be made only if certain conditions are met, including the following: "The claim for payment or reimbursement for any medical care beyond the initial emergency evaluation and treatment is for a continued medical emergency of such a nature that the veteran could not have been safely transferred to a VA or other Federal facility (the medical emergency lasts only until the time the veteran becomes stabilized)." 38 C.F.R. § 17.1002(d). The representative argues that the parenthetical remark conflicts with the rest of the regulation and the law. In 106 House Report 237, which was the Committee on Veterans Affairs amendment to the Veterans' Millennium Health Care Act, it was stated that the proposed bill defined emergency care "narrowly to cover only situations in which to delay treatment would be hazardous to life or health (and does not cover care rendered after the patient's condition has been stabilized)." Thus, it would appear that the regulatory definition of the point at which a person can be safely transferred, as being the point at which he is stabilized, is consistent with the intent of the law and is a proper implementation of the law. In this case, two VA medical professionals reviewed the record and determined that the veteran was stable as of August 14. That determination is supported by the private medical records which show that the catheter and nasogastric feeding tube were discontinued the day before, transfer planning began the day before, there were no medical procedures required that day or during the remainder of the hospitalization at JCMC. The private physicians have noted the need for further treatment. However, they have not said the veteran was not stable. Dr. Bash wrote that the veteran was ready for transfer at about day 5 post-op. Since the operation was on August 8, 2001, Dr. Bash's opinion would place the veteran as ready for transfer 5 days later on August 13 and certainly by August 14. Thus, the preponderance of the evidence from competent VA and private medical professionals establishes that the veteran was stable as of August 14, 2001. The Board is aware of the large medical bills incurred for private treatment. The Board has carefully reviewed all applicable law and regulations as the Board can only authorize benefits as allowed by law and regulations. The applicable law and regulations strictly limit the payment for treatment of the non-service-connected condition to emergency treatment until stabilized. On the facts of this case, the law does not authorize payment or reimbursement for expenses incurred after August 14, 2001. ORDER Payment or reimbursement of unauthorized medical expenses incurred after August 14, 2001, is denied. GARY L. GICK Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.