Citation Nr: 1005455 Decision Date: 02/05/10 Archive Date: 02/25/10 DOCKET NO. 06-22 923 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Portland, Oregon THE ISSUE Entitlement to medical reimbursement for services rendered at Legacy Salmon Creek Hospital from January 4, 2006 to January 6, 2006. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Richmond, Counsel INTRODUCTION The Veteran had active military service from April 1967 to December 1988. He died in January 2006. The appellant is a representative of the hospital where the Veteran received medical care from December 30, 2005 to January 6, 2006. This matter comes to the Board of Veterans' Appeals (Board) from an April 2006 decision of the Department of Veterans Affairs Medical Center (VAMC) in Portland, Oregon, which approved reimbursement for the Veteran's admission to Legacy Salmon Creek Hospital from December 30, 2005 to January 3, 2006, but denied reimbursement from January 4, 2006 to January 6, 2006. The Board remanded this case in October 2009 so that a hearing could be provided. In January 2010, the appellant testified before the undersigned Veterans Law Judge at a Board video conference hearing at the RO. A transcript of the hearing is of record. FINDING OF FACT The Veteran received treatment at Legacy Salmon Creek Hospital from January 4, 2006 to January 6, 2006 status post episodes of coffee-ground emesis and melena and a material deterioration of the emergency medical condition was likely to occur if he had been transferred to a VA or other Federal facility during that time. CONCLUSION OF LAW The criteria for entitlement to reimbursement for medical expenses incurred at Legacy Salmon Creek Hospital from January 4, 2006 to January 6, 2006, have been met. 38 U.S.C.A. §§ 1703, 1712, 1725, 1728 (West 2002 & Supp. 2008); 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.1000-17.1008 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Given the favorable nature of the Board's decision on the issue of whether reimbursement is warranted for medical expenses for treatment at Legacy Salmon Creek Hospital from January 4, 2006 to January 6, 2006, there is no prejudice to the appellant, regardless of whether VA has satisfied its duties of notification and assistance. When VA facilities are not capable of furnishing the care or services required, the Secretary 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. Payment or reimbursement for emergency services for nonservice-connected conditions in non-VA facilities may also be authorized under the Veterans Millennium Health care and Benefits Act (Millennium Bill) codified at 38 U.S.C.A. § 1725 and 38 C.F.R. §§ 17.1000-1008. To be eligible for reimbursement under this authority the Veteran has to satisfy 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 lay person 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 lay person 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 before hand would not have been considered reasonable by a prudent lay person (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 transferred to a VA or other Federal facility; (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 that 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 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; (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. In addition, a claim must be filed within 90 days of the latest of the following: (1) July 19, 2001; (2) the date that the veteran was discharged from the facility that furnished the emergency treatment; (3) the date of death, but only if the death occurred during the stay in the facility that included the provision of the emergency treatment; or (4) the date the veteran finally exhausted, without success, action to obtain payment or reimbursement for the treatment from a third party. 38 C.F.R. § 17.1004. VA payment or reimbursement of the cost of emergency treatment at a non-VA facility covers only medical emergencies, and those emergencies last only until the time the veteran becomes stabilized. 38 C.F.R. § 17.1002(d). 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). The appellant asserts both that the Veteran's medical condition was emergent and that no VA or other government facility was feasibly available during his period of treatment. The appellant's claim for reimbursement of the medical expenses incurred for treatment at Legacy Salmon Creek Hospital from January 4, 2006 to January 6, 2006 was denied by the VAMC because the Veteran was deemed by the VAMC to be in stable condition on January 4, 2006 and capable of transfer to a VA facility. His treatment at Legacy Salmon Creek Hospital from December 30, 2005 to January 3, 2006 was approved for reimbursement; thus, the VAMC determined that the only criteria not met for reimbursement under the Millennium Bill for treatment after January 3, 2006 was that the Veteran was stable at the time of treatment at Legacy Salmon Creek Hospital. The Board need only address whether the Veteran was stable at the time of treatment at Legacy Salmon Creek Hospital from January 4, 2006 to January 6, 2006. A December 30, 2005 admission note shows the Veteran was admitted to the emergency department at Legacy Salmon Creek Hospital status post episodes of coffee-ground emesis and melena, which had occurred the previous day. After physical examination and noting his medical history, the Veteran was assessed as having a gastrointestinal bleed; he was hematologic; he abused alcohol; and he had alcohol hepatitis, malnutrition, possible myocardial infarction, chronic pain, and diabetes. The discharge record dated on January 6, 2006 notes that the Veteran had a history of longstanding excessive alcohol use and presented to the emergency department with hematemesis and melena. He was admitted to the hospital for further evaluation and treatment. He had an esophagogastroduodenoscopy (EGD) which showed severe, diffuse erosive esophagitis; mild portal gastropathy; mild duodenitis; and possible gastric varices that were nonbleeding. He initially had no further episodes of gastrointestinal bleeding, but did have changes in his mental status that initially was thought to be secondary to hepatic encephalopathy. However, this did not clear up with increasing doses of lactulose. He was eventually transferred to the Intensive Care Unit because of increasing obtundation. The Critical Care Service was consulted, which performed intubation and placed the Veteran on a ventilator. During that time he started to re-bleed from above and had an emergent EGD. The EGD showed an active bleeding site, without protuberant varices, about 3 to 4 cm above the gastroesophageal junction. Varices were suspected in the gastric cardia but examination was limited due to blood. Multiple attempts were made to place ligating bands, and attempts to directly ligate were unsuccessful. Sclerosis was attempted and the bleeding was reduced but probably not completely eliminated. The Veteran continued to bleed and was getting multiple transfusions but expired. Other complications after his transfer to the unit included acute renal failure with hyperkalemia, acidosis, and seizure, for which he was treated with Ativan and bradycardia requiring atropine. A May 2006 letter from the appellant noted that the Veteran was admitted for a gastrointestinal bleed and that on January 3, 2006 it was noted that he had a critical ammonia level. On January 5, 2006, he was not arousable to painful stimuli. His gag reflex was absent; he was febrile and bright red blood was suctioned from his mouth. Early in the morning on January 6, 2006, the Veteran was transferred to the intensive care unit and began experiencing seizures. He was intubated and placed on a ventilator and a central arterial line and central venous line were placed. A nephrology consultation was requested with a diagnosis of acute renal failure and he ended up dying. The appellant noted that the Veteran experienced an accelerated need for medical care. It was evident from analyzing the Veteran's medical history that the condition was of such a nature that a prudent lay person would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. The appellant further noted that Legacy Health System representatives contacted VA regarding transfer and placement for the Veteran in a VA facility and that from January 3, 2006 to January 5, 2006, there were no beds available at the VA facility. Because the VA facility was not accepting patients during the Veteran's medical emergency, it was not feasibly available to provide medical care, and delay of the medical treatment would jeopardize his health. Similar arguments were set forth by the appellant during the Board video conference hearing in January 2010. The record shows that the Veteran received emergency care at a private hospital for services that were of such a nature that a prudent lay person would have reasonably expected that delay in seeking treatment would have been hazardous to his life. He was suffering from hematemesis and melena and had diagnosis of gastrointestinal bleed; he was hematologic; he abused alcohol; and he had alcohol hepatitis, malnutrition, possible myocardial infarction, chronic pain, and diabetes. Other complications included acute renal failure with hyperkalemia, acidosis, and seizure. The appellant further noted that on January 3, 2006 he had a critical ammonia level and on January 5, 2006, he was not arousable to painful stimuli. His gag reflex was absent; he was febrile and bright red blood was suctioned from his mouth. Thus, the Veteran was not stable at that time and a material deterioration of the emergency medical condition was likely to occur if he had been transferred to a VA or other Federal facility. The record also shows, as reported by the appellant, that VA or other Federal facility/providers were not feasibly available. The appellant stated that a representative from Legacy Health System inquired into the Veteran being transferred to a VA facility but was told that there were no available beds from January 3, 2006 to January 5, 2006. Thus, even if the Veteran could have been safely transferred to a VA or other Federal facility, there was no space for him when he needed it most. In light of the foregoing, the criteria have been met for reimbursement of medical expenses incurred at Legacy Salmon Creek Hospital from January 4, 2006 to January 6, 2006 under the Millennium Bill. 38 U.S.C.A. §§ 1703, 1712, 1725, 1728; 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.1000-17.1008. ORDER Entitlement to medical reimbursement for services rendered at Legacy Salmon Creek Hospital from January 4, 2006 to January 6, 2006 is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs