Citation Nr: 1751728 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 16-53 219A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Mountain Home, Tennessee THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses for treatment provided at a private medical facility on March 22-23, 2016. ATTORNEY FOR THE BOARD Jason George, Associate Counsel REPRESENTATION Veteran represented by: Virginia Department of Veterans Services INTRODUCTION The Veteran served on active duty from July 1963 to July 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 decision issued by the Department of Veterans Affairs (VA) Medical Center (MC). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT The Veteran's condition had stabilized on March 21, 2016, such that he could be transferred to a VA or Federal facility to receive any necessary continued care, the VA Hospital in Mountain Home, Tennessee was within 35 miles from the private hospital at which the Veteran was being treated, and there is no indication that the Mountain Home VA Hospital or other appropriate Federal facility was unavailable. CONCLUSION OF LAW The criteria for payment or reimbursement of unauthorized medical expenses for treatment provided at a private medical facility on March 22-23, 2016, have not been met. 38 U.S.C.A. § 1725 (West 2014); 38 C.F.R. §§ 3.102, 17.1001, 17.1002 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, and to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Legal Criteria The Veteran in this case sought medical care at a private facility and seeks to have VA pay for or reimburse him for the cost of his treatment. Congress has authorized the payment or reimbursement for unauthorized emergency medical treatment of veterans under 38 U.S.C.A. §§ 1725. Emergency medical treatment means the initial evaluation and 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 until 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. 38 U.S.C.A. § 1725(f); 38 C.F.R. § 17.1002(b). Likewise, the regulations define "stabilized" as meaning 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). Facts and Analysis No one disputes that it was necessary for the Veteran to receive emergency medical care at a private facility on March 17, 2016, for a digestive blockage that prevented the Veteran "from eating and voiding through his bowel and bladder" and caused the Veteran pain. Upon admission, the Veteran had a distended intestine caused by blockage and underwent surgery to remove a blockage in his intestine, which turned out to be a golf ball sized growth in the colon. The diagnosis was obstructing sigmoid colon cancer. Because of the pressing need for the Veteran to be treated, VA has already approved payment or reimbursement for the first five days of his hospital stay (March 17-21, 2016). The only issue is whether the Veteran is entitled to payment or reimbursement for the final two days of his hospitalization (March 22-23, 2016). As noted above, Congress has only authorized VA payment or reimbursement of medical expenses incurred for emergency treatment at a private facility until 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. 38 U.S.C.A. § 1725(f); 38 C.F.R. § 17.1002(b). Once a Veteran's condition has "stabilized," if he is still in need of medical care and desires for that care to be at VA's expense, he should be transferred to a VA or federal facility. See id.; 38 C.F.R. § 17.1001(d). A note in the medical records of the Veteran's hospital stay states: The patient had minimal abdominal pain after surgery. NG tube was removed and clear liquid diet was started. Patient's diet was later changed to regular diet and patient tolerated this. Patient had multiple bowel movements and flatus prior to hospital discharge. The patient was evaluated by physical therapy on 03/21/2016 and did well and physical therapy was discontinued. Patient remained stable after this point and was not having significant abdominal pain and was not requiring opioid therapy. Thus, the medical evidence of record demonstrates that the Veteran's condition had "stabilized" on March 21, 2016, within the meaning of 38 C.F.R. § 17.1001(d). The VA Hospital in Mountain Home, Tennessee, where the Veteran regularly seeks treatment, was within 35 miles from the private hospital at which the Veteran was being treated. The medical evidence of record indicates that by March 22, 2016, the Veteran was on a regular diet, was not on opioid medication, and was capable of being transferred at that time. There is no indication that the Mountain Home facility was incapable of accepting such a transfer. Thus, by March 22, 2016, the Veteran was no longer undergoing emergency care and reimbursement is not allowable. 38 U.S.C.A. § 1725(f)(1)(C)(i). The Veteran contends that reimbursement should be paid because he could not seek treatment for his emergency condition from VA when the condition initially occurred. This argument is moot as it has already been decided that VA will cover the costs for treatment of the Veteran's emergency medical condition at the private facility until he was stabilized. The only question to resolve is whether the Veteran is entitled to have VA pay private medical expenses after he was stabilized. While the Board understands the Veteran's frustration that he was unable to seek timely treatment from VA, either through his primary care doctor at VA or a VA emergency room facility, Congress has not authorized reimbursement for care after the Veteran was stabilized in this case. The Board also understands that the treating physician would recommend hospitalization for seven days after the surgery the Veteran underwent and that the Veteran developed relationship of trust with the treating physician who saved his life. The Board does not question the medical judgment of the treating physician. Nor is anyone questioning the merits of the Veteran's hospitalization, or for his need to seek initial treatment outside of VA or other Federal facility. Rather, the issue is whether reimbursement at the private facility is available for the period after which the Veteran's condition stabilized. Unfortunately, it is not. The Board also recognizes that the Veteran sought treatment at the VA Medical Center in Mountain Home, Tennessee on several previous occasions that did not resolve his condition. Further, although it appears he was undergoing regular treatment at VA, either by a physician or in the emergency room, the Veteran could not get an appointment with his VA primary care physician on March 17, 2016. While the Veteran's primary care physician was unavailable on March 17, 2016, there is no indication in the record that the Mountain Home VA Hospital, or other appropriate Federal facility to which the Veteran could have been transferred when his condition had stabilized on March 22-23, 2017, was unavailable. Therefore, the preponderance of the evidence is against the claim; there is no doubt to be resolved; and further reimbursement is not allowable. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Payment for unauthorized medical expenses for the hospitalization of the Veteran after his condition stabilized incurred on March 22-23, 2016, is denied. ____________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs