Citation Nr: 1007359 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 08-00 123 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Tampa, Florida THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred as a result of treatment at Parish Medical Center from January 25, 2007, to February 23, 2007. ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from October 1969 to February 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal from a determination by the Department of Veterans Affairs (VA) Medical Center in Tampa, Florida, which granted reimbursement or payment for medical expenses incurred as a result of treatment at Parish Medical Center from January 22, 2007, to January 24, 2007, but denied reimbursement of unauthorized medical expenses incurred as a result of treatment at Parish Medical Center from January 25, 2007, to February 23, 2007. This matter was previously before the Board in June 2009 at which time it was remanded for additional development. It is now returned to the Board for appellate review. The appeal is REMANDED to the James A. Haley Veterans' Hospital in Tampa, Florida. VA will notify the appellant if further action is required. REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. A review of the Veteran's claims file reveals that in January 2007, the Veteran began developing vascular problems in his left lower extremity. At that time, he was a resident of Titusville, Florida. He had been in contact with the VA medical center in Tampa, Florida (approximately 126 miles away) in order to arrange for treatment. In this regard, a VA outpatient treatment record dated January 19, 2007, shows that the Veteran was told to board a Greyhound bus from Titusville to Orlando, Florida, where he would then take a VA shuttle bus from Orlando to Tampa. A VA outpatient treatment record dated January 22, 2007, shows that the Veteran reported that he had been in too much pain and was unable to move. The VA nurse practitioner cancelled his appointment in Tampa and directed the Veteran to emergency room services. A private hospital treatment record dated January 22, 2007, shows that the Veteran was admitted at the Parish Medical Center in Titusville, Florida, with reported soreness in the left foot, where he remained until February 23, 2007. He was diagnosed with an acute clot with ischemic changes over the left lower extremity extending all the way from the iliac artery to the superficial femoral artery, and he underwent a thrombectomy and angioplasty with limited improvement. Subsequently, on January 29, 2007, a left below-the-knee amputation was attempted, but the Veteran ended up having a left above-the-knee amputation due to the extent of gangrene which had developed. Following a review of the evidence, in March 2007, the Chief Medical Officer (CMO) of the Tampa VA Medical Center determined that the Veteran had been approved for authorization of care and payment was authorized for services rendered until January 24, 2007, at which time the Veteran was said to have been stabilized. VA facilities were said to have been available at that time, to which the Veteran could have been safely transferred. VA authorized payment for the Veteran's medical care at the Parish Medical Center from January 22, 2007, to January 24, 2007. VA denied payment for the remainder of the inpatient hospital care from January 25, 2007, to February 23, 2007. In October 2007, the CMO elaborated that the Veteran had a chronically ischemic foot, not an acute event. The notes in the Veteran's claims file showed that the Veteran had been under VA treatment and the VA staff had made aggressive efforts to get the Veteran over to the Tampa Vascular Clinic, but the Veteran missed the appointment because he did not get on the bus. The CMO added that since VA was trying diligently to treat this problem but their efforts were thwarted by the Veteran's non-compliance and his "transportation issues," the CMO did not see any reason for VA to pay his private hospital bill, and disapproval was recommended as VA facilities were available. In a letter dated in August 2007 (determined to be the Veteran's notice of disagreement) submitted by the Appeals Nurse at the Parish Medical Center, it was indicated that the Veteran had been brought to the emergency room by emergency medical services with reports of left foot pain affecting ambulation. On admission his left foot was noted to have significant swelling, with all toes and area up to the mid foot grey in color. The tips of toes two, three, and five were noted to be black with a foul odor noted. Also noted was erythema from the ankle to the mid shin. On the days in question, the medical record states that on January 25, 2007, the Veteran was in the intensive care unit (ICU) for monitoring of renal function, intravascular volume and neurological status since he was very lethargic. He required three percent saline infusion for hyponatremia, Integrilin as well as Heparin infusions following an angioplasty with catheter thrombectomy of the left superficial femoral artery. Intravenous antibiotics were also continued, and he received transfusions for a hemoglobin of 7.3. He underwent a left above-the-knee amputation on January 29, 2007, and required continued ventilatory support post operatively. Cardiac catheterization was performed on January 31, 2007, after a deterioration in his condition and positive cardiac markers for a myocardial infarction. Amiodarone was initiated for new onset atrial fibrillation. The Veteran remained in ICU until February 5, 2007, at which time he was transferred to a telemetry bed with a sitter due to confusion. He required restraints for a period of time and psychiatric evaluation and follow up. Once his condition improved, telemetry was discontinued and the Veteran was transferred to a nursing home for further care on February 23, 2007. Hospital treatment records from the Parish Medical Center dated on January 31, 2007, and February 3, 2007, each show that the Veteran was listed in critical condition. In a June 2009 Remand, the Board requested that an appropriate VA medical official be consulted in order to provide a detailed opinion addressing at what point during the Veteran's hospitalization from January 25, 2007, to February 23, 2007, at the Parish Medical Center in Titusville, Florida, his condition stabilized, to the extent that he could be safely transferred to the nearest appropriate VA facility (which was apparently 126 miles away). A medical opinion was provided by the CMO in June 2009. In this opinion, it was indicated that the Veteran had been seen on January 22, 2007, for discoloration of the second and fourth toes, consistent with gangrene. The Veteran subsequently underwent major procedures during this hospital stay including arteriogram followed by thrombectomy (clot removal), cystoscopy (neurogenic bladder) and, most significantly, above knee amputation of left lower extremity. He obviously was not a candidate for transfer to VA during these weeks, however, the CMO determined that he was stable enough to be transferred to the Tampa VA Hospital when he became stable on January 24, 2007, before these procedures were done. The CMO explained that the Veteran was considered stable on January 24, 2007, for the following reasons: (1) It was a Wednesday and transfers to VA during weekends could be difficult (but not impossible) as specialist staff may not be in house; (2) His vital signs remained normal except for slight elevation of his blood pressure (156/90) and of particular note, no fever at any time; (3) There was no severe pain, to wit, the hospital note of December 24, 2007, shows "no specific complaints," and gangrene per se was said to usually be painless or nearly so; (4) Orthopedic note on Saturday, January 27, 2007, stated that the Veteran would do amputation on following Monday, January 29, 2007, so obviously it was felt safe medically to wait over the weekend, and the leg was stable; (5) Although there were conflicting notes by attending physicians (renal consult noted at 1:45 on January 24, 2007, showed "remains unresponsive," while cardiology note the same day showed that he was "alert and oriented") his mental status would not contraindicate transfer even though it was 127 miles on interstate highways. The CMO concluded that while an unfortunate case, the Veteran could have been safely transferred to the VA Hospital in Tampa, Florida, as all the necessary personnel were there to properly care for him, and the approximately two hour trip would in no way have jeopardized his condition. The CMO, therefore, recommended that VA approve payment from January 22, 2007, until his stabilization on January 24, 2007. While the CMO concluded that the Veteran could have been safely transferred to the VA Hospital in Tampa, Florida, it remains unclear as to whether the Veteran had been informed that he was stable enough for transfer by either VA or by Parish Medical Center. In this regard, as noted above, the Veteran was in the ICU on January 25, 2007, at the time he was said to have been stable enough for travel. The record does not specify what, if any, arrangements had been or could have been made for transfer of the Veteran to a facility more than 126 miles away. Nor does the record indicate what parties would be responsible for arranging such transport, or what type of transport would be provided. The CMO suggested that the VA staff had made aggressive efforts to have the Veteran treated at the Tampa Vascular Clinic prior to his admission at Parish Medical Center; however, there is no evidence of record to describe what, if any, efforts were made following his admission to the Parish Medical Center. There is no indication that any personnel from the VA Tampa medical facility contacted the Parish Medical Center to inquire as to the Veteran's status even though VA had been informed and approved of the Veteran's initial admission to Parish Medical Center. In view of the circumstances that the Veteran was in ICU on January 25, 2007 - while he may have been "stable" - it is unclear whether the Veteran was capable of acting on his own behalf in the matter of obtaining and arranging for transport, or otherwise even cognizant of the necessity to do so. As such, the Board finds that additional development of this matter is required prior to further disposition. Acquiring this information is necessary for the purpose of determining whether the Veteran had been properly denied reimbursement in conformance with the applicable laws and regulations contained in 38 U.S.C.A. §1725 (West 2002); 38 C.F.R. §§ 17.120, 17.121, 17.1000- 17.1002. Accordingly, the case is REMANDED for the following action: 1. The VA Medical Center in Tampa, Florida, should take necessary efforts to document what, if any, measures were undertaken to inform the Veteran that he was stable enough to be transferred to the VA Hospital in Tampa, Florida, while he was in the ICU on January 25, 2007. This should include obtaining any records which set forth that such notice was provided and which document the Veteran's response to any recommendations for transfer. All documented efforts made by the VA staff to have the Veteran transferred to the VA Hospital in Tampa, Florida, should be included. The VA Medical Center should also clarify the means by which the Veteran was to have been transferred to the VA Hospital in Tampa, Florida, while he was in the ICU on January 25, 2007. The VA Medical Center should also take necessary efforts to document whether or not the VA Hospital in Tampa, Florida, was feasibly available (with sufficient bed space and appropriate treating capability) at any time from January 25, 2007, to January 29, 2007. In so doing, the VA Medical Center should contact appropriate individuals to obtain all records (administrative records, contact reports, etc.) pertaining to any attempt to transfer the Veteran to the Tampa VA Hospital from the Parrish Medical Center during the applicable period. Any records obtained should be associated with the consolidated health record. 2. The VA Medical Center will then review the Veteran's claims file (to include the consolidated health record) and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claims adjudication. 3. The VA Medical Center will then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He 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). No inference should be drawn regarding the final disposition of this claim as a result of this action. 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.2009). _________________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).