Citation Nr: 1111167 Decision Date: 03/21/11 Archive Date: 04/05/11 DOCKET NO. 09-21 860 ) 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 at Health Central Hospital, Ocoee, Florida, for the period from October 13, 2002, to October 15, 2002. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from January 1962 to January 1964. 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 Health Central Hospital, Ocoee, Florida from October 10, 2002, to October 12, 2002, but denied reimbursement of unauthorized medical expenses incurred from October 13, 2002, to October 15, 2002. In his April 2009 Appeal To Board Of Veterans' Appeals (VA Form 9), the Veteran requested a hearing before a Veterans Law Judge to be held at the VA Central Office in Washington, DC. In August 2009, the Veteran was notified that his requested hearing was scheduled for October 26, 2009. However, prior to the date of the hearing, by letter dated later in August 2009, the Veteran withdrew his request for a hearing. FINDINGS OF FACT 1. The Veteran was treated at the James A. Haley Veterans Hospital following symptoms of epigastric pain of several weeks duration from October 7, 2002, to October 9, 2002, at which time he was discharged. 2. The Veteran received emergency medical care at Health Central Hospital, Ocoee, Florida, from October 10, 2002, to October 15, 2002, during which he underwent a laparoscopic cholecystectomy on October 11, 2002, and a cystoscopy and transurethral resection of the prostate on October 14, 2002. 3. The evidence of record has not shown that a VA or other federal facility was feasibly available for a transfer of the Veteran from October 13, 2002, to October 15, 2002. CONCLUSION OF LAW The criteria for payment or reimbursement of unauthorized medical expenses incurred at Health Central Hospital, Ocoee, Florida, for the period from October 13, 2002, to October 15, 2002, have been met. 38 U.S.C.A. §§ 1728, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 17.53, 17.120, 17.1000-17.1003 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist Veterans in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Here, the Board is granting in full the benefits sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Payment or reimbursement of unauthorized medical expenses The Veteran was treated at the James A. Haley Veterans Hospital following symptoms of epigastric pain of several weeks duration from October 7, 2002, to October 9, 2002, at which time he was discharged. In his April 2004 notice of disagreement, the Veteran described that following his discharge from the VA hospital on October 9, 2002, around 3:00 a.m. the following morning, he woke up with terrible pain. His spouse called 911, and an emergency crew took him to the nearest hospital - Health Central Hospital, Ocoee, Florida. The Veteran indicated that the emergency room physician concluded that surgery was imminent. He phoned the VA hospital in Tampa, Florida, and was told to go ahead with the surgery, and that they would pay. The emergency room report from Health Central Hospital dated on October 10, 2002, shows that the Veteran reported pain and a chief complaint of being unable to urinate. The initial impression was rule out urinary tract infection, rule out retention secondary to benign prostatic hypertrophy, rule out prostate cancer, and weight loss secondary to gallstones. A consultation report from N. H., M.D., dated October 10, 2002, shows that the Veteran had been followed by the VA hospital for benign prostatic hypertrophy for over a year, during which he had been given five milligrams of his medication for treatment. While hospitalized at VA within the preceding week, his medication was increased to 10 milligrams. He denied any voiding difficulty prior to that admission, but he reported three to four times nocturia and was catheterized in the emergency room. The impression was benign prostatic hypertrophy. A VA outpatient treatment record dated October 11, 2002, shows that a staff nurse received a telephone call from Health Central Hospital on October 10, 2002, indicating that the Veteran had been seen with a history of urinary retention, and that he would need to be seen as a follow-up patient at the clinic during the upcoming week. He was said to be in need of urgent consult to urology. It was indicated that the note would be forwarded to PCC for review. There is no further VA treatment record which follows. An operative report from C. T., M.D., dated October 11, 2002, shows that the Veteran underwent a laparoscopic cholecystectomy. Hospital treatment records dated October 12, 2002, show that the Veteran's discharge order was cancelled because he continued to be symptomatic, and that on October 14, 2002, he underwent an additional cystoscopy and transurethral resection of the prostate with Dr. H. The Veteran was discharged from Health Central Hospital on October 15, 2002. A determination of the Chief Medical Officer (CMO) of the VAMC dated September 3, 2008, shows that reimbursement of unauthorized medical expenses incurred at Health Central Hospital, was approved from October 10, 2002, until October 12, 2002, at which time the Veteran was deemed to be stable. The CMO recognized that the Veteran had been scheduled for a cystoscopy on October 14, 2002, and that he did need catheterization of the bladder on October 12, 2002, but that the delay had been because it was a weekend, and the Veteran could have been transferred to a VA facility on that day. Payment or reimbursement for emergency services for non-service-connected conditions in non-VA facilities may be authorized under 38 U.S.C.A. § 1725 and 38 C.F.R. §§ 17.1000- 1008. Section 1725 was enacted as part of the Veterans Millennium Health Care and Benefits Act, Public Law 106- 177. The provisions of the Act became effective as of May 29, 2000. 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 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 before hand 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 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 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.A. § 1728 for the emergency treatment provided (38 U.S.C.A. § 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). See 38 C.F.R. § 17.1002 (2010). This criteria are conjunctive, not disjunctive; thus all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334 (June 1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). The Board has considered the September 2008 medical determination of the CMO, encompassed in a four-line paragraph, suggesting that notwithstanding the fact that the Veteran continued to need catheterization of the bladder on October 12, 2002, he had stabilized to the point that he could be transferred to a VA facility. However, the Board finds that this opinion has limited probative value because it does not adequately explain the conclusion that the Veteran had stabilized and could be transferred to a VA facility. Moreover, the Board finds that, notwithstanding the assertion that the Veteran could have been transferred to a VA medical care facility, there is no evidence of record to suggest that the Veteran would have been accepted for transfer to such a facility on October 12, 2002, to include whether there was even a bed available for his transfer. While the October 11, 2002, VA outpatient treatment record shows that Health Central Hospital had contacted VA on October 10, 2002, in order to inform VA of the status of the Veteran, there is no indication in the record that VA ever followed up in an effort to have the Veteran transferred back to their facility following his prior discharge on October 9, 2002. The Board finds credible the statements and correspondence of the Veteran as to what he experienced beginning on October 10, 2002. While he is not competent to establish a diagnosis of a condition, his observations of the contemporaneous events as witnessed during his hospital stay have been consistent with the medical evidence of record and are deemed credible. The Veteran's claim was denied on the basis that his condition had stabilized to the point where he could be safely transferred to a VA facility. However, the Board finds that the absence of evidence showing that he had stabilized to the point of being safely transferred to a VA facility other than the imprecise conclusion of the CMO rendered six years following the date of the event, coupled with the competent medical evidence of record that the Veteran had a laparoscopic cholecystectomy on October 11, 2002, followed by an additional cystoscopy and transurethral resection of the prostate on October 14, 2002, and that there is no evidence that he would have been accepted for transfer to a VA facility on October 12, 2002, to be sufficient to establish that the Veteran is entitled to payment or reimbursement of the medical expenses incurred at Health Central Hospital, Ocoee, Florida, for the period from October 13, 2002, to October 15, 2002. While further inquiry could be undertaken with a view towards development of the claim so as to obtain an additional medical opinion, in light of the foregoing probative competent medical evidence of record, 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). All this considered, the Board will resolve all reasonable doubt in the Veteran's favor and conclude that the criteria for payment or reimbursement of unauthorized medical expenses incurred at a private medical facility from October 13, 2002, to October 15, 2002, pursuant to the Veterans Millennium Health Care and Benefits Act, have been met. 38 C.F.R. §§ 3.102, 4.3. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER Entitlement to payment or reimbursement of unauthorized medical expenses incurred at Health Central Hospital, Ocoee, Florida, for the period from October 13, 2002, to October 15, 2002, is granted. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs