Citation Nr: 1104627 Decision Date: 02/04/11 Archive Date: 02/14/11 DOCKET NO. 09-20 772 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Tomah, Wisconsin THE ISSUE Entitlement to reimbursement for unauthorized medical expenses incurred at Aspirus Wausau Hospital from March 12, 2008, to March 25, 2008. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Heneks, Associate Counsel INTRODUCTION The Veteran served on active duty from February to September 1975. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 2008 decision of the Department of Veterans Affairs (VA) Medical Center (MC) in Tomah, Wisconsin, which denied the benefit sought on appeal. In November 2009, the Veteran presented testimony at a hearing conducted by the use of video conferencing equipment at the Milwaukee, Wisconsin Regional Office (RO) before the undersigned Veterans Law Judge (VLJ) sitting in Washington, D.C. A transcript of this hearing is in the Veteran's claims folder. FINDINGS OF FACT 1. On March 12, 2008, the Veteran was admitted to Aspirus Wausau Hospital from the emergency room at Good Samaritan Hospital. 2. The Veteran sought treatment 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; 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; and the claim for payment or reimbursement for any medical care beyond the initial emergency evaluation and treatment was 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. CONCLUSION OF LAW The criteria for payment or reimbursement for an unauthorized medical expenses incurred at Aspirus Wausau Hospital from March 12, 2008, to March 25, 2008, have been met. 38 U.S.C.A. §§ 1725, 5107 (West 2002); 38 C.F.R. §§ 3.102, 17.120, 17.121, 17.1000, 17.1001, 17.1002 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Because the claim on appeal is being granted, there is no need to review whether VA's statutory duties to notify and assist are fully satisfied as any error would be non-prejudicial. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010); see also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010). LAW AND ANALYSIS There are essentially two avenues for obtaining payment or reimbursement of private medical care expenses, 38 U.S.C.A. §§ 1725 and 1728. After review of the evidence of record, it appears that the Veteran's claim was only considered under 38 U.S.C.A. § 1725. Accordingly, the Board will consider the claim under these provisions. Payment or reimbursement under 38 U.S.C.A. § 1725 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; (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; (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; (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, (i) The veteran is not eligible for reimbursement under 38 U.S.C.A. § 1728 for the emergency treatment provided. 38 C.F.R. § 17.1002. The Board notes that, during the pendency of the appeal, on October 10, 2008, S. 2162, designated as the Veterans' Mental Health and Other Care Improvements Act of 2008, was signed by the President. This bill makes various changes to veterans' mental health care and also addresses other health care related matters. Relevant to the instant case, the new law amends 38 U.S.C.A. §§ 1725 and 1728 to make mandatory as opposed to discretionary the reimbursement of the reasonable value of emergency treatment of an "eligible" veteran furnished by a non-VA facility, if all of the pertinent criteria outlined above are otherwise satisfied. See Veterans' Mental Health and Other Care Improvements Act of 2008, Pub. L. No. 110-387, § 402, 122 Stat. 4110 (2008). Additionally, this amendment added a provision, which essentially expands one of the criteria that defines the meaning of "emergency treatment" to include treatment rendered until such time as the veteran can be transferred safely to a VA facility or other Federal facility and such facility is capable of accepting such transfer; or . . . such time as a Department facility or other Federal facility accepts such transfer if: (I) at the time the veteran could have been transferred safely to a Department facility or other Federal facility, no Department facility or other Federal facility agreed to accept such transfer; and (II) the non-Department facility in which such medical care or services was furnished made and documented reasonable attempts to transfer the veteran to a Department facility or other Federal facility. The Board will consider and apply the amended version of 38 U.S.C.A. §§ 1725 and 1728, which are more favorable to the claimant because they liberalize the law by mandating reimbursement and expanding the definition of emergency treatment. After considering the Veteran's claim under 38 U.S.C.A. § 1725, the Board finds that the Veteran is entitled to reimbursement under these provisions. The Board observes that there is no indication that conditions (a), (e)-(i) are at issue. Specific to condition (i), there is no information in the record detailing whether the Veteran was eligible for reimbursement under 38 U.S.C.A. § 1728 for the emergency treatment provided. 38 C.F.R. § 17.1002. Accordingly, the Board will proceed under the assumption that he was not eligible under those provisions. The evidence of record reflects that about two weeks prior to his admission to the emergency room at Good Samaritan Hospital (G.S.H.), the Veteran fell and hit the back of his head. Records from Aspirus Wausau Hospital (A.W.H.) reflected that he did not see a doctor at that time. The Veteran reported that for the past week before he was admitted to the emergency room he had been having essentially continuous headaches. He went to the emergency room where a CAT scan was performed. The CAT scan demonstrated evidence of right-sided contusions on the brain in the frontal and temporal lobes and what appeared to be an isodense right hemispheric subdural hematoma, which was causing mass effect and compression on the right hemisphere with associated right to left midline shift. The emergency room contacted A.W.H. and transferred the Veteran on March 12, 2008. A letter from Dr. K.S. of G.S.H. associated with the claims file in July 2008 reflected that it was medically necessary for ambulance transfer of the Veteran from G.S.H. to A.W.H. on March 12, 2008. Dr. K.S. stated that the situation was urgent and required close critical care monitoring while the Veteran was being transported for further neurological care. The type of bleed (intraparenchymal/subdural bleed of approximately 1.5 cm with a midline shift) with further bleeding can deteriorate the stability of a patient. The only means of intervention is through neurosurgery and unfortunately, G.S.H. does not have a neurosurgeon on staff. This required G.S.H. to transport the Veteran as expediently as possible to the nearest facility (A.W.H.) that could manage his care. A May 2008 letter from Dr. B.B. of A.W.H. reflected that upon admission to A.W.H. on March 12, 2008, the Veteran was diagnosed with right frontal-temporal-parietal subdural hematoma with an underlying traumatic brain injury. He was admitted to intensive care and was taken to surgery the next day where he underwent a craniotomy and evacuation of the right-sided hematoma and a left frontal ventriculostomy catheter was placed. Dr. B.B. stated that it would not have been appropriate to transfer the Veteran to a VA hospital prior to surgery, as he was not yet stable. He was not stable for discharge until about March 20, 2008, at which time A.W.H. began to discuss transfer with the Tomah VAMC. They did not accept him until March 25, 2008. VA records reflect that the Tomah VAMC had been in contact with A.W.H. since at least March 13, 2008. The first notation reflected that the Veteran had been transferred to A.W.H. from the emergency room on March 12, 2008 and was currently in the ICU (intensive care unit). The Veteran had fallen a few weeks ago, and was admitted for intracranial bleeding. "Mill Bill only- needs to transfer to VA as soon as stable" was written. A March 14, 2008, record reflected that the Veteran had surgery to evacuate the hematoma. He was expected to be discharged the next day. A March 15, 2008, entry indicated that the Veteran had a ventricular drain in place and that he will need 24 hour observation after the drain is removed. A March 18, 2008, entry stated that the drain was removed and the Veteran was transferred to the neuro floor for further monitoring. On March 19, 2008, the Veteran was observed to be confused and that he had fallen. On March 19, 2008, it was noted that Tomah VAMC had encouraged the Veteran's transfer when he was stable. Suggestions for transfer included the VA facilities in Madison and Minneapolis. A.W.H. planned to do another CT scan on March 20, 2008, and if the CT scan was okay, the plan was discuss transfer with Dr. C. On March 20, 2008, a referral packet was sent to be reviewed for 400T. On March 24, 2008, T.M. was instructed to call Dr. C for possible transfer. Dr. H had given the okay to admit the Veteran. On March 25, 2008, the Veteran's provider was noted to be in surgery. The plan was to call Dr. C for transfer to 400T that am (morning). An April 2008 VA record stated that from documentation from G.S.H. emergency room, it appears that the Veteran could have been transferred to a VA facility (i.e. Madison) for further workup. It was noted that the ER report says "the patient is stable." May 2008 denial letters from the Tomah VAMC reflect that the Veteran's claim was denied for conditions (b), (c), and (d). Beginning with condition (b), the Board observes that the Veteran sought treatment at the emergency department following a fall two weeks early when he hit the back of his head. He complained of continuous headaches at the time of his admission. The Board observes that the Veteran's initial treatment expenses at the emergency room are not subject to this appeal and appear to have been paid by VA. The Board further observes that the evidence of record reflects that it was medically necessary to transfer the Veteran from G.S.H. to A.W.H. As stated above, Dr. K.S. of G.S.H. stated that the situation was urgent and the Veteran required close critical care monitoring while being transported for further neurological care due to the nature of the bleed. Accordingly, the Board concludes that at the time of transfer from the emergency room to A.W.H., the Veteran's condition was 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. 38 U.S.C.A. § 1725(b). Turning to condition (c), the evidence of record reflects that a VA facility was not feasibly available at the time of transfer. As stated by Dr. K.S., the only means of intervention for the Veteran's injury was through neurosurgery and unfortunately, G.S.H. does not have a neurosurgeon on staff. This required G.S.H. to transport the Veteran as expediently as possible to the nearest facility (A.W.H.) that could manage his care. The Board observes from an internet search that A.W.H. is approximately 15 miles from G.S.H. On the contrary, the Madison VAMC is approximately 160 miles away and the Tomah VAMC is approximately 137 miles away from G.S.H. Accordingly, the Board concludes that the evidence of record reflects that 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. 38 U.S.C.A. § 1725(c). The last condition, (d), appears to be the condition that is mostly in dispute. As reflected above, Dr. B.B. of A.W.H. stated that it would not have been appropriate to transfer the Veteran to a VA hospital prior to surgery, as he was not yet stable. He was not stable for discharge until about March 20, 2008, at which time A.W.H. began to discuss transfer with the Tomah VAMC. The VAMC did not accept him until March 25, 2008. VA records from the Tomah VAMC indicate that the VA facility had been monitoring the Veteran's condition since at least March 13, 2008, to determine when he was stable for transfer. The March 19, 2008, entry which documented that Tomah VAMC had encouraged the Veteran's transfer when he was stable reflects that he was not stable at that time. The Board observes that it is somewhat unclear when the Veteran was determined to be stable based on the VA records. However, Dr. B.B. indicated that the Veteran was stable around March 20, 2008, but that the VAMC did not accept him until March 25, 2008. Although the Board acknowledges the April 2008 VA record wherein a community health nurse coordinator determined that from documentation from G.S.H. emergency room, it appears that the Veteran could have been transferred to a VA facility (i.e. Madison) for further workup. It was noted that the ER report says "the patient is stable." The Board observes that there is no ER report of record documenting that the Veteran was stable. On the contrary, Dr. K.S. indicated that the nature of the Veteran's bleed was such that further bleeding could have deteriorated his stability and it was necessary to transport the Veteran to the nearest facility. As previously stated the Madison VAMC was not the nearest facility. Accordingly, the Board concludes that the Veteran's treatment beyond the initial emergency evaluation was 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. 38 U.S.C.A. § 1725(d). The Board finds it significant that the May 2008 denials as well as the April 2009 statement of the case (SOC) provide no reasons or bases for their conclusions that conditions (b), (c), and (d) were not met. The Board concludes that it is not necessary to remand this claim for better reasons or rationale by the VAMC as to how they reached their determinations. As detailed above, the Board has found the evidence provided by Drs. K.S. and B.B. sufficient on which to base a determination. Therefore, all of the conditions under 38 U.S.C.A. § 1725 have been met and the claim is granted. ORDER Entitlement to reimbursement for unauthorized medical expenses incurred at Aspirus Wausau Hospital from March 12, 2008, to March 25, 2008, is granted. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs