Citation Nr: 1326480 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 11-20 639 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Mountain Home, Tennessee THE ISSUE Entitlement to payment or reimbursement of medical expenses incurred in connection with the Veteran's care at Claiborne County Hospital and Nursing Home (CCHNH) from November 4, 2009 to November 6, 2009. REPRESENTATION Veteran represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION According to information obtained by the Department of Veterans Affairs (VA) Medical Center (MC) in Mountain Home, Tennessee, the Veteran served on active duty from September 1994 to November 1994. This matter comes to the Board of Veterans' Appeals (Board) on appeal from August 2010 and January 2011 decisions by the Mountain Home VAMC. The VAMC denied payment or reimbursement of medical expenses incurred in connection with the Veteran's care at CCHNH from November 4, 2009 to November 6, 2009. The Board notes that the Veteran has an electronic (Virtual VA) file, in addition to the paper combined health record currently before the Board. The documents in the electronic file include additional evidence, including procedural documents and VA medical records associated with the Veteran's appeal of other issues, which remains pending. It does not appear that the VAMC has reviewed the evidence in the electronic file in connection with the current appeal. However, as discussed below, the Board finds that the current appeal can be fully allowed. Thus, there is no need to return the case to the VAMC for further review. See 38 C.F.R. §§ 19.31, 20.1304(c) (2012). FINDINGS OF FACT 1. The Veteran incurred medical expenses in connection with his care at CCHNH from November 4, 2009 to November 6, 2009; his admission to CCHNH at VA expense was not authorized. 2. At the time of his admission to CCHNH, the Veteran had a long history of significant, multiple, gastrointestinal problems, and he was service-connected for gastroesophageal reflux disease (GERD) with dehydration, esophagitis, duodenitis, and gastritis. 3. The Veteran was treated at CCHNH for an apparent upper gastrointestinal (GI) bleed, underwent packed cell transfusion, and, although testing was performed, the source of the bleeding was not identified. 4. The Veteran's care at CCHNH was rendered in a medical emergency of such nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to his life or health. 5. At the time of the Veteran's admission to CCHNH, the VAMC in Mountain Home, Tennessee, was diverting patients away due to facility and emergency department saturation, and was unavailable for his use; in light of his medical history, it would not have been reasonable for the Veteran to have attempted to use VA facilities beforehand. 6. The evidence does not establish that the Veteran became stable enough for transfer to a VA or other Federal facility prior to his discharge from CCHNH on November 6, 2009. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for payment or reimbursement of medical expenses incurred in connection with the Veteran's care at CCHNH from November 4, 2009 to November 6, 2009 have been met. 38 U.S.C.A. §§ 5107, 1725, 1728 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 17.54 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board's decision to grant payment or reimbursement of medical expenses incurred in connection with the Veteran's care at CCHNH from November 4, 2009 to November 6, 2009, herein, constitutes a complete grant of the benefit sought on appeal. Thus, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and implementing regulations. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Generally, if VA is to provide payment or reimbursement of medical expenses incurred in connection with a Veteran's care at a non-VA hospital, the care must be authorized in advance. See 38 U.S.C.A. § 1703 (West 2002 & Supp. 2012); 38 C.F.R. § 17.54 (2012). Whether treatment was authorized is a factual, not a medical, determination. Similes v. Brown, 5 Vet. App. 555 (1994). In the case of an emergency that existed at the time of admission, an authorization may be deemed a prior authorization if an application is made to VA within 72 hours after the hour of admission. 38 C.F.R. § 17.54 (2012). When a Veteran receives treatment at a non-VA facility without prior authorization, the law provides two related, but independent, avenues for obtaining payment or reimbursement for medical expenses. See 38 U.S.C.A. §§ 1725, 1728 (West 2002 & Supp. 2012). Under the current version of 38 U.S.C.A. § 1728, effective October 10, 2008, VA shall, under such regulations as the Secretary prescribes, reimburse a Veteran eligible for hospital care or medical services under Chapter 17, Title 38, United States Code, for the customary and usual charges of emergency treatment (including travel and incidental expenses under the terms and conditions set forth at 38 U.S.C.A. § 111) for which such Veteran has made payment, from a non-VA facility, where such emergency treatment was rendered to the Veteran in need thereof for: (1) an adjudicated service-connected disability; (2) a non-service-connected disability associated with and held to be aggravating a service-connected disability; (3) any disability of a Veteran if the Veteran has a total disability, permanent in nature, from a service-connected disability; or (4) any illness, injury, or dental condition of a Veteran who (a) is a participant in a vocational rehabilitation program (as defined in 38 U.S.C.A. § 3101(9)), and (b) is medically determined to have been in need of care or treatment to make possible the Veteran's entrance into a course of training, or prevent interruption of a course of training, or hasten the return to a course of training which was interrupted because of such illness, injury, or dental condition. See Veterans' Mental Health and Other Care Improvements Act of 2008, Pub. L. No. 110-387, § 402, 122 Stat. 4110 (2008) (codified at 38 U.S.C.A. § 1728(a) (West Supp. 2012). In lieu of reimbursing the Veteran, VA may make payment directly to the hospital or other health facility furnishing the emergency treatment, or to the person or organization making such expenditure on behalf of the Veteran. 38 U.S.C.A. § 1728(b) (West Supp. 2012). For purposes of 38 U.S.C.A. § 1728, the term "emergency treatment" means medical care or services furnished, in the judgment of the Secretary: (1) when Department or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable; (2) when such care or services are rendered in a medical emergency of such nature that a prudent layperson reasonably expects that delay in seeking immediate medical attention would be hazardous to life or health; and (3) until (a) such time as the Veteran can be transferred safely to a Department facility or other Federal facility and such facility is capable of accepting such transfer, or (b) 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. 38 U.S.C.A. §§ 1725(f)(1), 1728(c) (West Supp. 2012). If, and only if, a Veteran is not eligible for payment or reimbursement of unauthorized medical expenses under the provisions of 38 U.S.C.A. § 1728, he may, in the alternative, seek to establish eligibility under 38 U.S.C.A. § 1725. See 38 U.S.C.A. § 1725(b)(3)(D) (West Supp. 2012). In the present case, the evidence of record shows that the Veteran has had a long history of significant, multiple gastrointestinal problems. At the time of the treatment here in question, he was service connected for GERD with dehydration, esophagitis, duodenitis, and gastritis. (Another appeal, wherein he is seeking to establish service connection for multiple other gastrointestinal disabilities, remains pending.) A VA Nursing Telephone Encounter Note reflects that the Veteran contacted VA on the morning of November 4, 2009. He reported that he had been bleeding dark blood from his rectum for the past 24 hours; that he had had multiple dark stools that appeared to be more blood than stool; and that he had lost consciousness for several minutes. He was advised to call 9-1-1 and go to the nearest emergency room. The Veteran was admitted to CCHNH later that same day. An Emergency Provider Record from the day of admission reflects a chief complaint of rectal bleeding and tarry stools, with an onset/duration of three days. It was also noted that he had had an episode of syncope the previous evening, and that he was pale. On testing, his hemoglobin was noted to be 8.1, and his hematocrit 23.9. He was treated for an apparent upper GI bleed and underwent packed cell transfusion for associated anemia. On the morning of November 5, 2009, a representative from CCHNH contacted VA to notify VA of the Veteran's admission to CCHNH for a GI bleed. A VA narrative states, "Patient is NSC (non-service-connected) for this episode of care, it was emergent, and the VA was not available. This will not be fee." A VA Transfer Coordinator Progress Note, dated later that same morning, reflects that the possibility of the Veteran's transfer to a VA facility was discussed. The note indicates that the caller from CCHNH was to check with the Veteran about possible transfer and call back with the Veteran's decision and clinical information. No further report of communication with respect to transfer is of record. Clinical records from CCHNH show that the Veteran's hematocrit was 26.3 late in the evening on November 5, 2009, following transfusion. On November 6, 2009, he underwent esophagogastroduodenoscopy (EGD). The source of the bleeding was not identified. He was discharged later that day, after his hematocrit and hemoglobin (H&H) became stable. A VA Fee Basis Claim Evaluation, dated in January 2011, notes, in pertinent part, that the Veteran's treatment was emergent, and that the VAMC in Mountain Home, Tennessee was diverting patients away due from the VAMC on November 4, 2009, due to facility and emergency department (ED) saturation. However, the reviewing physician opined, in effect, that it would have been reasonable for the Veteran to have used VA facilities prior to that date, in light of his three-day history of tarry stools, and his episode of syncope, as noted in the records from CCHNH. Following a review of the record, the Board finds, as an initial matter, that the Veteran's admission to CCHNH on November 4, 2009 at VA expense was not authorized. Although the Veteran contacted VA prior to his admission, and a representative from CCHNH contacted VA on the morning after his admission, there is no evidence to show that his care at CCHNH at VA expense was ever approved. As a result, if VA payment or reimbursement is to be made, he must qualify under the provisions of 38 U.S.C.A. §§ 1725 or 1728. In this regard, the Board finds that the evidence supports the Veteran's claim payment or reimbursement under 38 U.S.C.A. § 1728. There is no real dispute that the Veteran's care at CCHNH was rendered in a medical emergency of such nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to his life or health. Nor is there any dispute that VA facilities were not available for his use on the date of his admission to CCHNH, inasmuch as the VAMC in Mountain Home was diverting patients away on that date. The real questions here, under 38 U.S.C.A. § 1728, are whether an attempt to use VA facilities prior to November 4, 2009 would have been reasonable, and whether the treatment in question was for an adjudicated service-connected disability. As to these matters, the Board finds that the evidence gives rise to a reasonable doubt. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). Although the clinical evidence shows that the Veteran experienced onset of rectal bleeding and tarry stools approximately three days prior to his admission to CCHNH, and experienced syncope the evening before, the evidence also shows, as noted above, that he had a long history of significant, multiple, gastrointestinal problems prior to the episode in question. In light of that lengthy history, and the likely ebb and flow of associated symptoms, the Board cannot conclude, by a preponderance of the evidence, that it would have been reasonable for the Veteran to have attempted to use VA facilities prior to the date of his admission to CCHNH on November 4, 2009. Nor can the Board conclude, by a preponderance of the evidence, that the condition for which the Veteran was treated at CCHNH was unrelated to his service-connected GERD with dehydration, esophagitis, duodenitis, and gastritis. As noted above, although testing (EGD) was performed, the source of his bleeding was not identified. Under the circumstances-and resolving all reasonable doubt in the Veteran's favor-the Board will accept, for purposes of this claim only, that the symptoms for which he was treated were related to, or associated with, his service-connected disability. Accordingly, and because the evidence does not establish that the Veteran became stable enough for transfer to a VA or other Federal facility prior to his discharge from CCHNH on November 6, 2009, the Board finds that the criteria for payment or reimbursement of medical expenses incurred in connection with the Veteran's care at CCHNH from November 4, 2009 to November 6, 2009 have been satisfied and the appeal is allowed. ORDER Payment or reimbursement of medical expenses incurred in connection with the Veteran's care at CCHNH from November 4, 2009 to November 6, 2009 is granted. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs