Citation Nr: 1617969 Decision Date: 05/04/16 Archive Date: 05/13/16 DOCKET NO. 14-25 598 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Medical Center in Lincoln, Nebraska THE ISSUE Entitlement to payment or reimbursement for medical services received at Good Samaritan Hospital (GSH) in Kearney, Nebraska from July 8, 2012 to July 11, 2012. ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1960 to May 1963. This matter comes before the Board of Veterans' Appeals (Board) from a decision of the VA Nebraska-Western Iowa Health Care System in Lincoln, Nebraska. FINDINGS OF FACT From July 8, 2012 through July 11, 2012, the Veteran received non-VA medical care from GSH to treat coronary artery disease; the care was initially for a medical emergency and by the time he was stabilized for transfer, a bed was not available at the Omaha VA Medical Center (VAMC). CONCLUSION OF LAW The criteria for reimbursement for non-VA medical services provided by GSH from July 8, 2012 to July 11, 2012 have been met. 38 U.S.C.A. §§ 1701, 1725, 1728 (West 2014); 38 C.F.R. §§ 17.50, 17.54, 17.120, 17.1000-08 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Analysis The Veteran received care at GSH from July 8, 2012 to July 11, 2012. It is neither shown nor alleged that this care was preauthorized by VA. See 38 U.S.C.A. § 1703(a); 38 C.F.R. § 17.54. Also, the care was not for a service-connected disability as the record indicates that the Veteran is not service-connected for any disability. 38 U.S.C.A. § 1728. Accordingly, the Board's decision in this case is focused on whether the Veteran can receive payment or reimbursement for the GSH medical services under 38 U.S.C.A. § 1725, which applies to qualifying emergency care and limited subsequent non-emergent care for non-service connected disability at a private medical facility. 38 C.F.R. § 17.1000-1008. In this case, the Veteran presented to the GSH emergency room on July 8, 2012 because he was experiencing chest pain. He was evaluated at approximately 5:30 p.m. and was diagnosed with chest pain, rule out myocardial infarction. He was given nitroglycerin, which alleviated his pain. It was noted that the Veteran's case would be discussed with an on-call cardiologist who would evaluate the Veteran in the hospital as soon as was feasible. It was also noted that the Veteran would be sent to VA "as needed and if necessary." A subsequent July 8, 2012 GSH history and physical by an attending physician found that the Veteran most likely had a progression of his coronary artery disease. Consequently, a treadmill nuclear test was scheduled to test functional capacity and any major area of ischemia. A catheterization and "possible intervention on the next day" were also to be scheduled. The stress test was conducted on the morning of July 9, 2012, with a subsequent nuclear interpretation of it showing mild lateral and inferolateral wall ischemia and a left ventricular ejection fraction of 52 percent. A transthoracic echocardiogram conducted in the early afternoon of January 9, 2012 produced pertinent findings of mild left ventricular hypertrophy and impaired relaxation in the left ventricle (diastolic dysfunction). On the morning of July 10, 2012, the Veteran underwent a selective coronary angiography. The angiography showed narrowing and stenosis in various areas, including in the third diagonal and posterior descending artery. As a result, stents were placed in these areas to help alleviate this stenosis. The diagnostic conclusion was successful drug eluting stents to the third diagonal and posterior descending artery. The Veteran was discharged home on the following day, July 11, 2012. The VAMC granted payment or reimbursement of the emergency room treatment received at GSH, finding that all criteria under 38 U.S.C.A. § 1725 were met for the Veteran's receipt of this treatment. However, the VAMC denied payment or reimbursement of the remaining treatment received at GSH, finding that the Veteran was medically stable for transfer to the Omaha VAMC early on July 9, 2012 and there were beds available at the Omaha VAMC at that time. Therefore, the Veteran could have been safely transferred for treatment. The VAMC did not find that the Veteran was otherwise ineligible under 38 U.S.C.A. § 1725 for the care received at GSH following the emergency room treatment. See 38 C.F.R. § 17.1002. Therefore, the Board's remaining analysis is primarily focused on whether the Veteran could have been safely transferred to the Omaha VAMC on July 9, 2012. Pertinent VA regulations indicate that VA will generally not approve claims for payment or reimbursement of the costs of emergency treatment not previously authorized 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, a 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. § 17.1005(b). However, claims for payment or reimbursement of the costs of emergency treatment not previously authorized may 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 VA (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. 3 8 C.F.R. § 17.1005(c). In the November 2013 statement of the case, a VAMC appeals specialist indicated that a clinical review of GSH and VA records had determined that the Veteran was stable early in the day on July 9, 2012 and that there were beds available at the Omaha VAMC at that time. However, in a January 2014 letter, a quality review specialist from GSH indicated that due to the Lexiscan stress test ordered by his physician and done on the morning of July 9th, the Veteran's care manager at GSH was unable to make contact with the Veteran until the afternoon of July 9th. At that time, the care manager became cognizant of the need to transfer the Veteran to the Omaha VAMC if a bed was available. However, when she contacted the Omaha VAMC (sometime between 2 and 4 pm that afternoon), she was informed that no beds were available. Based on the above summarized evidence, it does appear that the Veteran was stable for transfer to the VAMC at some point on July 9th. However, as a practical matter, because the Veteran received the stress test that morning (presumably as part of a GSH evaluation of his stability), GSH was not able to attempt to arrange for a transfer until the afternoon of July 9th. At that point, it was reasonably established that a bed at the Omaha VAMC or other VA or federal facility was not available for the Veteran. Therefore, resolving any reasonable doubt in the Veteran's favor, the Board finds that GSH notified VA at the time the Veteran could be safely transferred and was informed that the transfer was not accepted. GSH then appropriately documented its reasonable attempts to attempt to transfer the Veteran. Moreover, the evidence also indicates that the Omaha VAMC had informed the GSH representative that GSH would be called if a bed opened up but no such contact was made from the VAMC for the remainder of the Veteran's GSH hospital stay. Thus, it reasonably shown a VA bed was not available for transfer of the Veteran on July 10th or 11th. Consequently, the Board finds that even after the emergency period ended on July 9, 2012, the Veteran met the criteria for VA payment or reimbursement of continued non-emergent treatment until the end of his GSH hospitalization on July 11, 2012. Accordingly, payment or reimbursement of the costs for medical services received at Good Samaritan Hospital (GSH) in Kearney, Nebraska from July 8, 2012 to July 11, 2012 is warranted. The evidence indicates that the Veteran does have Medicare Part A, which already paid for part of the costs of the treatment received at GSH. A recent Court of Appeals for Veterans' Claims (Court) ruling has clarified that a Veteran who is covered by Medicare for part of the cost of a private hospitalization is not precluded from receiving payment or reimbursement under 38 U.S.C.A. § 1725. See Staab v. McDonald, 2016 WL 1393521 (April 8, 2016). However, the Board notes that the level of such payment or reimbursement is subject to some limitation under the controlling regulations. See 38 C.F.R. § 17.1005. Consequently, while the Board is granting general entitlement to this benefit, the amount of payment or reimbursement to which the Veteran is actually entitled, if any, must be calculated by the VAMC in the first instance according to the controlling regulations, including 38 C.F.R. § 17.1005. ORDER General entitlement to payment or reimbursement for medical services received at Good Samaritan Hospital (GSH) in Kearney, Nebraska from July 8, 2012 to July 11, 2012 is granted subject to the regulations governing the payment of monetary awards, including 38 C.F.R. § 17.1005. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs