Citation Nr: 0811428 Decision Date: 04/07/08 Archive Date: 04/23/08 DOCKET NO. 07-03 294A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in North Florida/South Georgia Veterans Health System THE ISSUES 1. Entitlement to payment of medical expenses incurred by the veteran during a hospitalization at Baptist Medical Center from March 22, 2006 to March 24, 2006 (hospitalization from March 17, 2006 to March 24, 2006) 2. Entitlement to payment of medical expenses incurred by the veteran on March 17, 2006, for the cost of medical expenses and ambulance transportation received from Nassau County BOCC. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The veteran served on active duty from April 1967 to January 1970. This matter comes on appeal from a 2006 decision of the North Florida/South Georgia Veterans Health System. A Travel Board hearing was held before the undersigned Veterans Law Judge (VLJ) in March 2008. A transcript of the hearing is of record and associated with the claims folder. The issue of entitlement to payment of medical expenses incurred by the veteran on March 17, 2006, for the cost of medical expenses and ambulance transportation received from Nassau County BOCC is being REMANDED to the VA Medical Center (VAMC). Pursuant to 38 C.F.R. § 20.900(c), this case is advanced on the docket for good cause shown. FINDINGS OF FACT 1. The veteran received medical care at Baptist Medical Center from March 17, 2006 to March 24, 2006. 2. The veteran underwent a laparoscopic cholecystectomy on March 22, 2006. 3. After surgery, the veteran had a complicated state of perceived congestive heart failure (CHF), postoperative fever, nausea, and vomiting, which required an additional 48 hour stay. 4. With resolution of the benefit of the doubt, the veteran's condition was stabilized at the conclusion of his hospital stay and discharge to follow-up on outpatient basis on March 24, 2006. CONCLUSION OF LAW The criteria for payment or reimbursement of unauthorized medical expenses incurred at Baptist Hospital Center on March 23, 2006 to March 24, 2006, have been met. 38 U.S.C.A. § 1725 (West 2002 & Supp 2005); 38 C.F.R. §§ 17.1000-17.1002 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating claims for VA benefits. Given the fully favorable decisions discussed below, the Board finds that any issue with regard to timing or content related to VCAA notice provided to the veteran is moot or represents harmless error. The veteran asserts in essence, that payment of medical expenses incurred from March 23, 2006 to March 24, 2006 by the veteran during hospitalization at Baptist Medical Center is warranted. The veteran claims that although all of his medical expenses were paid for the hospitalization that occurred at this facility until March 22, 2006, full payment for the entirety of the hospitalization is warranted. Having carefully considered the appellant's contentions in light of the evidence of record and the applicable law, the Board finds that the weight of such evidence is in approximate balance and the claim will be granted on this basis. 38 U.S.C.A § 5107(b) (West 2002); Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993) (Observing that under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the claimant shall prevail upon the issue). Under the provisions of 38 C.F.R. § 17.1002, payment or reimbursement for emergency services may be made only if all of the following conditions are met: (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 (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 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 that the nearest available appropriate level of care was at a non-VA medical center); (d) 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 discharged or transferred to a VA or other Federal facility (the medical emergency lasts only until the time the veteran becomes stabilized); (e) 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; (f) The veteran is financially liable to the provider of emergency treatment for that treatment; (g) The veteran has no coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the emergency treatment (this condition cannot be met if the veteran has coverage under a health-plan contract but payment is barred because of a failure by the veteran or the provider to comply with the provisions of that health-plan contract, e.g., failure to submit a bill or medical records within specified time limits, or failure to exhaust appeals of the denial of payment); (h) 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 the veteran has no contractual or legal recourse against a third party that could reasonably be pursued for the purpose of extinguishing, in whole or in part, the veteran's liability to the provider; and (i) The veteran is not eligible for reimbursement under 38 U.S.C. 1728 for the emergency treatment provided (38 U.S.C. 1728 authorizes VA payment or reimbursement for emergency treatment to a limited group of veterans, primarily those who receive emergency treatment for a service-connected disability). 38 C.F.R. § 17.1002 The veteran has met all of the criteria to warrant reimbursement for his medical expenses for hospitalization until March 22, 2006. What is in controversy at this point is whether he warrants reimbursement for the final two days of his hospitalization from March 23, 2006 to March 24, 2006. In this regard, 38 C.F.R. § 17.1002 (d) indicates 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 discharged or transferred to a VA or other Federal facility (the medical emergency lasts only until the time the veteran becomes stabilized). The term stabilized means that no material deterioration of the emergency medical condition is likely, within reasonable medical probability, to occur if the veteran is discharged or transferred to a VA or other Federal facility. 38 C.F.R. § 17.1001 (d) (2007). A March 22, 2006 Operative/Procedural Report indicated that the veteran was brought to the operating room and placed in a supine position. Induction of general anesthesia with orotracheal intubation was performed. A cholangiogram was performed. Following the laparoscopic cholecystectomy with an intraoperative cholangiogram, the wounds were closed and dry dressing was applied. The veteran tolerated the procedure well and he was extubated in the operating room and sent to the recovery room in stable condition. However, the only evidence of record indicating the point of medical stabilization is the report of discharge summary. In substance, it indicates that following surgery, the veteran had signs and symptoms of heart failure and Cardiology was consulted. While in an emergency state, the physicians at Baptist Hospital Center found the veteran had, in addition to signs and symptoms of heart failure, hypokalemia which required potassium replacement. VA was called for a transfer and it indicated that it did not have room to admit the veteran. VA approved to have a laparoscopic cholecystectomy performed. The cholecystectomy was performed on March 22, 2006. Postoperatively, the veteran had some fever, nausea, and vomiting. His intraoperative cholangiogram was negative. Because of his complicated case with heart failure, leg wounds, fever, nausea, and vomiting, he had to remain hospitalized 48 hours after surgery. By March 24, 2006, the physician at Baptist Medical Center assessed that the veteran had reached maximum hospital benefit and could be safely discharged home. Discharge was rendered on March 24, 2006. Although the agency of original jurisdiction determined that the veteran had become stabilized within the meaning of the law on March 22, 2006, the Board is unable to ascertain the bases for such an assessment. The question is one requiring medical expertise, and both the RO and the Board may not rely upon their own unsubstantiated medical opinion. Allday v. Brown, 7 Vet. App. 517 (1995); Godfrey v. Brown, 7 Vet. App. 398 (1995); Traut v. Brown, 6 Vet. App. 495 (1994); Colvin v. Derwinski, 1 Vet. App. 171 (1991). There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim. However, under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). That the veteran completed surgery is not, in and of itself, a medical opinion upon which to find that he was stabilized. However, it is unquestioned that the veteran was only released to home on March 24, 2006. The evidence showed the veteran needed to remain hospitalized for 48 hours after surgery, until March 24, 2006. The veteran was consulted by the Cardiology service while he was hospitalized. He underwent surgery, requiring general anesthesia. After surgery, he had complications showing possible heart failure, vomiting, nausea and postoperative fever. These symptoms, combined together, showed that the veteran's condition was not stabilized. These symptoms showed that there was still some material deterioration likely of his emergency medical condition, and as such, the veteran was not stable for discharge or transfer at that time. This is further supported by the discharge summary's indication that the veteran's case was considered to be complicated. Based on these findings, payment of medical expenses incurred by the veteran during a hospitalization at Baptist Medical Center from March 22, 2006 to March 24, 2006 (hospitalization from March 18 to March 24, 2006) is warranted. ORDER Payment of medical expenses incurred by the veteran during a hospitalization at Baptist Medical Center from March 22, 2006 to March 24, 2006 (hospitalization from March 18, 2006 to March 24, 2006), is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND Further development is necessary as to the claim for entitlement to payment of medical expenses and ambulance transportation incurred by the veteran on March 17, 2006, received from Nassau County BOCC. The veteran asserts that he warrants payment for ambulance transportation incurred on March 17, 2006 , from Nassau County BOCC. He stated that the ambulance transportation was necessary for emergency treatment. He also stated that he was transported to the medical facility twice in one day and that the last transport was paid by VA, but not the initial transport for emergency services. Under the Veterans Claims Assistance Act of 2000 (VCAA), VA is required to notify the veteran of any evidence that is necessary to substantiate his claim. This includes notifying the appellant of the evidence VA will attempt to obtain and that which the appellant is responsible for submitting. Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim. See 38 C.F.R. § 3.159 (2007) Unfortunately, in this claim, the veteran was not notified of what was necessary to substantiate his claim for reimbursement of ambulance services. This must be done prior to final adjudication of the claim. There is only a copy of the March 17, 2006 medical bill but not a copy of a medical report accompanying the emergency situation that required the veteran to be transported to the closest hospital for his emergency medical condition. Accordingly, the case is REMANDED for the following action: 1. Send the veteran a VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes an explanation as to the information or evidence needed to establish reimbursement for emergency transportation expenses on March 17, 2006 (the first transport) by Nassau County BOCC. 2. After obtaining a release of information from the veteran, a copy of all medical records generated in connection with the initial alleged emergency transportation to the Baptist Medical Center on March 17, 2006 should be obtained and associated with the claims folder. 3. If the benefits sought on appeal remains denied, the veteran and his representative should be furnished a supplemental statement of the case. The appropriate laws and regulations should be provided to the veteran and his representative and they should be provided an appropriate period to respond. 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 Supp. 2005). ______________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs