Citation Nr: 1334910 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 05-39 538A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Portland, Oregon THE ISSUE Entitlement to payment or reimbursement of unauthorized private medical expenses incurred from October 23, 2004, through October 24, 2004. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran had active military service from October 1968 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from decisions issued in March and June of 2005 of the Department of Veterans Affairs (VA) VA Medical Center in Portland, Oregon. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The medical treatment received by the Veteran from October 21st through 24th of 2004 was in relation to his service-connected hepatitis C. 2. The medical treatment received by the Veteran from October 21st through 24th of 2004 was rendered in a medical emergency of such nature that delay would have been hazardous to his life or health. 3. The VA Medical Center in Portland, Oregon, was not feasibly available. CONCLUSION OF LAW The criteria for payment or reimbursement of unauthorized private medical expenses incurred from October 23, 2004 through October 24, 2004, have been met. 38 U.S.C.A. §§ 1728 (West 2002); 38 C.F.R. §§ 17.120(2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA duties to notify and assist the claimant in substantiating a claim for VA benefits are described in 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Inasmuch as the benefit sought is being granted, there is no reason to further explain how VA has complied with these notice and assistance provisions. The Veteran seeks payment or reimbursement for the unpaid costs of private hospital medical care received from the 23rd to the 24th of October 2004 for an upper gastrointestinal (GI) bleed with varices and encephalopathy. The Board notes that the Veteran's hospitalization was from October 21st to the 24th in 2004 and that VA granted payment under the Veterans Millennium Health Care and Benefits Act, 38 U.S.C.A. § 1725, implemented in part at 38 C.F.R. §§ 17.1000 and 17.1002, for October 21st through the 22nd for the period until the Veteran was stable for transfer. Thus, the remaining issue for the Board to decide is entitlement to payment or reimbursement for the remaining days of the 23rd and 24th. At the time of this medical treatment, the Veteran was service-connected for hepatitis C with thrombocytopenia rated as 20 percent disabling; posttraumatic stress disorder rated as 10 percent disabling; multiple residuals of shell fragment wounds each rated as 0 percent disabling; jungle rot to his feet rated as 0 percent disabling and bilateral hearing loss rated as 0 percent disabling. His combined disability rating for these service-connected disabilities was 30 percent. The private hospital records show that, on October 21, 2004, the Veteran was brought via ambulance into the emergency room combative, diaphoretic and tachycardic. The discharge summary indicates the Veteran had a history of cirrhosis due to hepatitis C and chronic venous insufficiency who was admitted to the private hospital through the emergency department with decreased mental status, diaphoresis, and melena/hematochezia. He was also reported as having episodes of hematemesis and appeared delirious and with a tachycardic heart rate. The Veteran was diagnosed with an acute GI bleed. He was treated in the emergency department (to include transfusion with four units of packed red blood cells) and was admitted to the intensive care unit. Pulmonary, GI and cardiology services were consulted. Cardiac and pulmonary pathology was ruled out and the Veteran was sedated and intubated for a brain CT scan and upper endoscopy. The CT scan was negative and the upper endoscopy revealed three gastric varices which were banded during the procedure. Over the next 24 hours the Veteran remained confused and agitated. He was transfused with another unit of red blood cells. Psychiatry consult was obtained and the patient was placed on transport hold to continue medical treatment. He gradually improved in the next 24 hours and was transferred to a medical/surgical unit where he continued to improve with his mental status. His hemoglobin and hematocrit remained stable and the patient did not exhibit any signs of further bleeding. He was discharged on day four of his admission with much improved condition and no complications. Specifically, the private treatment records further show that, on October 22nd, the Veteran wanted to leave the hospital against medical advice because he wanted to go to a football game; however, his medical treatment post GI bleed was not complete. Psychiatric evaluation was conducted and he was found to have decreased mental status. The note indicates that after explaining the risks of leaving, the Veteran agreed to stay and receive treatment and to be placed on "HOLD" to ensure he was treated if his delirium returned. A Safety Risk Assessment indicates the Veteran was cognitively unstable and at high risk of medical problems if he left before completing treatment. This record indicates he was placed on "transport hold to receive medical care." In contrast, VA treatment records demonstrate that the private hospital treating the Veteran contacted the VA Medical Center in Portland, Oregon, on October 22nd indicating that the Veteran was requesting transfer. It is noted that the private hospital deemed the Veteran stable for transfer. Transfer was denied, however, because the Portland VA Medical Center was on total ambulance divert and had no bed available. It instructed the private hospital to continue to call each day with the Veteran's clinical progress and to check on bed availability. The note further indicates that, when a general medical bed became available, the VA Medical Center would contact the subspecialist coordinator who would assess clinical situation and transfer needs. The VA treatment records further show that the Veteran called on October 24th and advised the VA Medical Center that he was just discharged that morning from the private hospital where he was treated for GI bleed and hepatic encephalopathy, and requesting a follow up appointment. As previously indicated, the VA Medical Center granted payment for the Veteran's private medical treatment on October 21st and 22nd of 2004 under the Veterans Millennium Health Care and Benefits Act (38 U.S.C.A. § 1725), which only provides reimbursement for emergency treatment. In other words, once a veteran is stable for transfer, VA has no obligation to cover any additional expenses incurred. The Board finds, however, that this Veteran's treatment from October 21st to the 24th of 2004 is covered under 38 U.S.C.A. § 1728 rather than § 1725 because the treatment received was essentially rendered for an adjudicated service-connected disability. Under 38 U.S.C.A. § 1728(a), reimbursement of certain medical expenses is available only "where - (1) such care or services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health; (2) such care or services were rendered to a veteran in need thereof (A) for an adjudicated service-connected disability, (B) for a non-service-connected disability associated with and held to be aggravating a service-connected disability, (C) for any disability of a veteran who has a total disability permanent in nature from a service-connected disability, or (D) for any illness, injury, or dental condition in the case of a veteran who (i) is a participant in a vocational rehabilitation program (as defined in section 3101(9) of this title), and (ii) is medically determined to have been in need of care or treatment . . . .; and (3) [VA] or other Federal facilities were not feasibly available, and an attempt to use them beforehand would not have been reasonable, sound, wise, or practical." 38 U.S.C.A. § 1728(a); 38 C.F.R. § 17.120. The Court has observed that, given the use by Congress of the conjunctive "and" in the statute, emphasized in the above quotation, "all three statutory requirements would have to be met before reimbursement could be authorized." Malone v. Gober, 10 Vet. App. 539, 542 (1997), citing Cotton v. Brown, 7 Vet. App. 325, 327 (1995); Hayes v. Brown, 6 Vet. App. 66 (1993). The Veteran is service-connected for hepatitis C. The Board finds that the Veteran's upper GI bleed with varices, which was due to cirrhosis of the liver, is the result of his service-connected hepatitis C. This finding is supported by the private medical records that clearly relate the Veteran's upper GI bleed with varices to cirrhosis due to hepatitis C. (See e.g., October 21, 2004 Operative Report.) In addition, this finding is supported by a December 2004 VA examination report in which the VA examiner found that the Veteran had hepatitis C with cirrhosis and opined that the Veteran's upper GI bleed secondary to gastric varices was likely secondary to his hepatitis C and cirrhosis. It is also supported by the RO's February 2005 rating decision, which found that a separate disability rating was warranted for cirrhosis with varices in response to the Veteran's October 29, 2004 claim for an increased disability rating for his service-connected hepatitis C. Hence, the Board finds that the second criterion under § 1728(a) was met. Furthermore, there is no question that such care or services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health. The Veteran was confused, combative diaphoretic and tachycardic when the paramedics arrived. They felt he was in supraventricular tachycardia and attempted both chemical and electrical cardioversion without success. It was only later, once the Veteran's girlfriend arrived in the emergency room, that it was known about the Veteran's recent history of melena, hematochezia and hematemesis. Furthermore, the fact that the Veteran was placed in the intensive care unit for further evaluation and treatment and was also that first day sent into surgery lend credence to the finding that this was clearly of such a nature that further delay would have been hazardous to the Veteran's life or health. Consequently, the Board finds that the first criterion under § 1728(a) was met. As for the third criterion, the Veteran has stated that the ambulance tried to take him to the Portland VA Medical Center, but was diverted to the local private hospital because the VA Medical Center did not have any beds and because of the severity of the Veteran's condition. The medical records available unfortunately do not contain the ambulance company's report nor is there any kind of notation in the available treatment records so there is no clear indication in the record to support the Veteran's statement. Furthermore, given the amount of confusion and combativeness noted in the medical records, the Veteran's ability to knowingly state what happened is questionable and, therefore, his statement lacks credibility because the Veteran was clearly not in his right mind while being transported and, in fact, it appears from the Emergency Department note, he was even sedated at some point during his treatment by the paramedics in the ambulance. However, given that the VA Medical Center reported to the private hospital on October 22nd that it was on total ambulance divert and did not have any medical beds available, the Board finds that it is likely that the same status was present on the 21st as such status apparently continued during the remainder of the Veteran's hospital stay since he was never transferred to VA and there is no notation in the VA records that a bed became available but transfer was refused. Thus, the Board will resolve reasonable doubt in the Veteran's favor that the Portland VA Medical Center was not feasibly available on the 21st to treat him. Nevertheless, the Board finds that an attempt to use the Portland VA Medical Center beforehand would not have been reasonable, sound, wise, or practical given the Veteran's emergent medical condition. It is clear from the medical treatment records that the Veteran needed treatment fast and, although not clear from the record, it appears from the Veteran's statements that the private hospital was closer to the Veteran's residence than the VA Medical Center such that it was quicker for the ambulance to get to. The Board finds, therefore, that the third criterion was met. The Board finds further that, even after the medical emergency seemed to have passed, the Portland VA Medical Center continued to be feasibly unavailable for transfer of the Veteran as demonstrated by the VA Medical Center's own records showing that it was on total ambulance divert and had no beds available. If a bed became available, it appears that arrangements were to be made for the Veteran's transfer, which never happened. Consequently, the Board can only conclude that it never became feasible to transfer the Veteran to the Portland VA Medical Center even once he became stable for transfer. Consequently, the Board finds that all of the criteria for reimbursement or payment by VA, under 38 U.S.C.A. § 1728, of the cost of medical services provided from October 21st through 24th of 2004 have been met. As payment has already been made for October 21st and 22nd of 2004, the Board finds that payment or reimbursement should be made for October 23rd and 24th of 2004. ORDER Reimbursement of medical expenses for emergency room and medical treatment for unauthorized medical treatment received on October 23rd and 24th of 2004 is granted. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs