Citation Nr: 1512461	
Decision Date: 03/24/15    Archive Date: 04/01/15

DOCKET NO.  12-30 709	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in the North Florida/South Georgia Veterans Health System, Gainesville, Florida


THE ISSUE

Entitlement to payment or reimbursement of unauthorized medical expenses for treatment provided at Memorial Hospital Flagler from May 15, 2012, to May 22, 2012.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

C. Bosely, Counsel




INTRODUCTION

The Veteran had active service from September 1968 to June 1970. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 decision of the Department of Veterans Affairs (VA) medical center in Gainesville, Florida.  


FINDINGS OF FACT

1.  The Veteran was hospitalized at a private hospital from May 11, 2012, to May 22, 2012.  

2.  Two designated VA clinicians reviewed the matter and found that stabilization had been reached on May 14, 2012.

3.  There are no documented attempts by the private hospital to transfer the Veteran to VA.  


CONCLUSION OF LAW

The criteria for entitlement to payment or reimbursement for unauthorized medical services for treatment provided by Memorial Hospital Flagler from May 15, 2012, to May 22, 2012, have not been met. 38 U.S.C.A. §§ 1728, 1725, 5107 (West 2014); 38 C.F.R. §§ 3.102, 17.120-17.132, 17.133, 17.1000-17.1008, (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran seeks reimbursement for emergency treatment at a non-VA hospital provided in May 2012.  He was admitted from May 11, 2012, until May 22, 2012, at which time he was discharged to home.  Upon timely application for reimbursement, VA approved the claim from May 11, 2012, to May 14, 2012.  

Accordingly, this appeal is limited to the reminder of his hospitalization from May 15, 2012, until May 22, 2012.  The claim was denied below because it was found that stabilization had been reached by May 14, 2012.  

I.  Due Process

As an initial matter, the Board finds that all due process requirements under claims for payment or reimbursement of medical expenses have been met.  First, the Veteran was notified June 2012 of the reasons for the disallowance and of the right to initiate an appeal to the Board.  See 38 C.F.R. §§ 17.132, 17.133.  Moreover, he was provided a statement of the case (SOC) in September 2012, pursuant to 38 C.F.R. § 19.29.  See id.  He was also sent a VCAA notice letter in September 2012, which informed him of the information and evidence necessary to substantiate a claim for VA benefits.  See 38 U.S.C.A. § 5103.  Finally, he was offered, but declined, his right to a hearing before the Board.  38 C.F.R. § 20.700.  

Moreover, the private hospital at which the Veteran was treated supplied VA with the records from its facility during the time period at issue.  Also, the opinions of the designated VA clinicians at the VA facility were obtained.  See 38 C.F.R. § 17.121(a); see also 38 U.S.C.A. § 17.1006.  

For the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits at this time.

II.  Analysis

A. Applicable Law

In pertinent part, payment or reimbursement may be made for emergency treatment if rendered to a veteran in need thereof for any disability of a veteran if the veteran has a total disability permanent in nature from a service-connected disability.  38 U.S.C.A. § 1728.  Under 38 U.S.C.A. § 1728, the term "emergency treatment" has the meaning given such term in 38 U.S.C.A. § 1725(f)(1).

Pursuant to 38 U.S.C.A. § 1725(f)(1), the term "emergency treatment" means medical care or services furnished, in the judgment of the Secretary-- (A) when Department or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable; (B) 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 (C) until--(i) 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 (ii) 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.   

A claim for payment or reimbursement of the costs of emergency treatment not previously authorized will not be approved for any period beyond the date on which the medical emergency ended.  For this purpose, VA considers that an emergency ends when the designated VA clinician at the VA facility has determined that, based on sound medical judgment, the veteran who received emergency treatment:  (1) Could have been transferred from the non-VA facility to a VA medical center (or other Federal facility that VA has an agreement with to furnish health care services for veterans) for continuation of treatment, or (2) Could have reported to a VA medical center (or other Federal facility that VA has an agreement with to furnish health care services for veterans) for continuation of treatment.  38 C.F.R. § 17.121(a); see also 38 U.S.C.A. § 17.1006 (designating the Chief of the Health Administration Service or an equivalent official at the VA medical facility of jurisdiction to make all determinations regarding payment or reimbursement under 38 U.S.C. 1725, except that the designated VA clinician at the VA medical facility of jurisdiction will make determinations regarding §17.1002(b), (c), and (d)).

Claims for payment or reimbursement of the costs of emergency treatment not previously authorized may only be approved for continued, non-emergency treatment, if: (1) The non-VA facility notified VA at the time the veteran could be safely transferred to a VA facility (or other Federal facility that VA has an agreement with to furnish health care services for veterans), and the transfer of the veteran was not accepted; and (2) The non-VA facility made and documented reasonable attempts to request transfer of the veteran to a VA facility (or to another Federal facility that VA has an agreement with to furnish health care services for veterans), which means the non-VA facility contacted either the VA Transfer Coordinator, Administrative Officer of the Day, or designated staff responsible for accepting transfer of patients, at a local VA (or other Federal facility) and documented such contact in the veteran's progress/physicians' notes, discharge summary, or other applicable medical record.  38 C.F.R. §§ 17.121(b), 17.1005.

If a stabilized veteran who requires continued non-emergency treatment refuses to be transferred to an available VA facility (or other Federal facility that VA has an agreement with to furnish health care services for veterans), VA will make payment or reimbursement only for the expenses related to the initial evaluation and the emergency treatment furnished to the veteran up to the point of refusal of transfer by the veteran.  38 C.F.R. § 17.121(c).

The term "stabilized" means that no material deterioration of the emergency medical condition is likely, within reasonable medical probability, to occur if the veteran is discharged or transferred to a VA or other Federal facility that VA has an agreement with to furnish health care services for veterans.  38 C.F.R. § 17.1001(d).  

The Chief of the Health Administration Service or an equivalent official at the VA medical facility of jurisdiction will make all determinations regarding payment or reimbursement under 38 U.S.C. 1725, except that the designated VA clinician at the VA medical facility of jurisdiction will make determinations regarding §17.1002(b), (c), and (d).  38 C.F.R. § 17.1006.

B. Discussion

Here, the appeal must be denied.  The only issues of fact materially in dispute in this appeal are (a) the date on which the Veteran was stabilized for transfer to the VA hospital, and (b) whether the private hospital made reasonable attempts to transfer the Veteran to a VA facility.  

With regard to the first question, the two designated VA clinicians reviewed the matter, as required by §17.121(a), in June 2012 and September 2012 respectively.  They both determined that stabilization had been reached on May 14, 2012.  The private hospital records tend to suggest otherwise, as they first note that the Veteran was stable several days later, on May 21, 2012.  However, it is the determination of the designated clinicians at the VA facility, and not the treating doctors, which controls this question.  See 38 C.F.R. § 17.121(a).  Because this is a medical question, the Board has no discretion to question these VA clinicians' assessments.  

Next, the claim must be denied because the private hospital did not make or document reasonable attempts to transfer the Veteran to the VA hospital.  The clinical records beginning from May 15, 2012, do document the Veteran's request to be transferred to VA ("wants to be transferred to VA.Hospital [sic]").  In fact, this medical record on May 15, 2012, plainly notes a plan to "Request transferr [sic]."  

Furthermore, beginning from May 19, 2012, the medical records repeatedly document that the Veteran was "awaiting transfer" to VA.  However, the private hospital's records do not actually document any attempts to contact the VA hospital, such as telephone calls, as required by § 17.121(b).  

In this regard, it is not even entirely clear that the notation "awaiting transfer" means that the private hospital ever contacted the VA hospital such that this statement could be interpreted to mean "awaiting approval for transfer."  Several notations suggest otherwise.  For instance, a treatment record on May 17, 2012, notes that "he will need [t]o be discharged" (emphasis added) "[i]f his hemoglobin remains stable over the next few days."  This statement suggests two inferences.  First, that the Veteran was being considered for discharge and not transfer to VA.  Second, that it was the private doctors' medical determination that he was not yet ready to be transferred.  In short, this notation is not consistent with an administrative decision to hold him pending approval by VA for transfer.  

Then, on May 22, 2012, his date of discharge, it is noted: "Possible transfer to another location or gainsville.  Pt is stable will consider transfer to gainsville ... Pt wants out of here . . I said if he is stable he may go home and discuss plan with me at the Gainsville VA. [all sic]"  Again here, the notation "will consider transfer" uses the future tense, which suggests that no attempts had yet been made.

His treatment records from the VA facility were also obtained, and they do not documented any contact from this private hospital.  

Accordingly, the evidentiary record establishes (a) that stabilization had been reached on May 14, 2012, and (b) that there are no documented attempts by the private hospital to transfer the Veteran to VA.  Accordingly, the appeal must be denied under 38 U.S.C.A. § 1728.  

The Board has also considered whether the claim may be approved after May 15, 2012, under 38 C.F.R. § 1725.  This is not possible, however, because the information supplied shows that he has Medicare.  See 38 C.F.R. § 17.1002(f) (2014).  

For these reasons, the appeal must be denied.  







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ORDER

Entitlement to payment or reimbursement of unauthorized medical expenses for treatment provided by Memorial Hospital Flagler from May 15, 2012, to May 22, 2012, is denied.



____________________________________________
STEVEN D. REISS 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs