Citation Nr: 18141446 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 15-27 105A DATE: October 10, 2018 ORDER Payment or reimbursement of non-Department of Veterans Affairs (VA) medical services incurred from March 12 to 27, 2014, is granted. FINDING OF FACT The Veteran’s treatment from March 12 to 27, 2014, including helicopter transportation services, was for a medical emergency requiring immediate medical attention; an attempt to use VA-related facilities beforehand would not have been reasonable; and the Veteran did not stabilize during this period and could not have been transferred to a VA-related facility. CONCLUSION OF LAW The criteria for payment or reimbursement of non-VA medical services incurred from March 12 to 27, 2014, have been met. 38 U.S.C. §§ 1725, 5107; 38 C.F.R. §§ 17.1000-17.1008. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1966 to December 1967. He died in March 2014. The appellant is the Veteran’s surviving spouse. This appeal is before the Board of Veterans’ Appeals (Board) from decisions of a VA Medical Center (VAMC). The Veteran received non-VA treatment from March 12, 2014, until his death on March 27, 2014. The appellant is seeking VA payment or reimbursement of the expenses of such treatment. Legal Criteria Pursuant to 38 U.S.C. § 1725, under certain circumstances, VA shall reimburse a veteran for the reasonable value of emergency treatment furnished the veteran in a non-Department facility. VA regulations at 38 C.F.R. §§ 17.1000 through 17.1008 constitute the requirements under 38 U.S.C. § 1725 that govern VA payment or reimbursement for non-VA emergency services furnished to a veteran for nonservice-connected conditions. 38 C.F.R. § 17.1000. Under such regulations, payment or reimbursement under 38 U.S.C. 1725 for emergency treatment (including medical services, professional services, ambulance services, ancillary care and medication (including a short course of medication related to and necessary for the treatment of the emergency condition that is provided directly to the patient for use after the emergency condition is stabilized and the patient is discharged)) will be made if certain conditions are met, which are listed under 38 C.F.R. § 17.1002. Such conditions include the following: The claim for payment or reimbursement for the initial evaluation and treatment is 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 (this standard would be met if there were an emergency medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) that a prudent layperson who possesses an average knowledge of health and medicine could reasonably expect the absence of immediate medical attention to result in placing the health of the individual in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part). 38 C.F.R. § 17.1002(b). A VA or other Federal facility/provider that VA has an agreement with to furnish health care services for veterans was not feasibly available and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson (as an example, these conditions would be met by evidence establishing that a veteran was brought to a hospital in an ambulance and the ambulance personnel determined the nearest available appropriate level of care was at a non–VA medical center). 38 C.F.R. § 17.1002(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). Except as provided below, VA will 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). Claims for payment or reimbursement of the costs of emergency treatment not previously authorized may be approved for continued, non-emergency treatment, only 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. 38 C.F.R. § 17.1005(c). Notwithstanding the provisions of 38 C.F.R. § 17.1002, but subject to the provisions of 38 C.F.R. §§ 17.1004 and 17.1005, payment or reimbursement under 38 U.S.C. § 1725 for ambulance services, including air ambulance services, may be made for transporting a veteran to a facility where payment or reimbursement is authorized under 38 U.S.C. § 1725 for emergency treatment provided at a non-VA facility if certain other conditions are met. 38 C.F.R. § 17.1003(a). These other conditions are listed under 38 C.F.R. § 17.1003. In this case, it has not been disputed by VA that any of these other conditions listed under § 17.1003 have not been met, and the record does not otherwise indicate that any other such condition has not been met. Rather, the record reflects that payment or reimbursement for emergency transportation services was denied by the agency of original jurisdiction (AOJ) on the basis that payment or reimbursement had not been authorized under 38 U.S.C. § 1725 for the emergency treatment at the non-VA facility to which the Veteran was transferred. To receive payment or reimbursement for emergency services under 38 U.S.C. § 1725, a claimant must file a claim within 90 days after the latest of the following: the date that the veteran was discharged from the facility that furnished the emergency treatment; the date of death, if the death occurred during transportation to a facility for emergency treatment or during the stay in the facility that included the provision of the emergency treatment; or the date the veteran finally exhausted, without success, action to obtain payment or reimbursement for the treatment from a third party. 38 C.F.R. § 17.1004(d). Analysis In an April 2014 letter to the appellant, the VAMC stated that, through her Member of Congress, VA had learned that she was concerned about the Veteran’s final medical bills being paid by VA, and explained where the Veteran’s non-VA medical provider should send his bills for processing. As reflected in the AOJ’s June 2015 statement of the case (SOC), multiple medical providers submitted individual claims for payment to VA within 90 days of the Veteran’s death, beginning in March 2014. Most such claims, were noted to have been rejected, but the providers continued to follow up with the claims, which continued multiple times a month between March 2014 and June 2015; it is unclear what, if any, additional evidence was requested or submitted from such providers during this period. However, that June 2015 SOC indicates that the AOJ accepted a June 2015 communication from the appellant’s Member of Congress as a valid notice of disagreement with the determination to deny payment or reimbursement for expenses incurred from March 12 to 27, related to the Veteran’s treatment prior to his death. The appellant thereafter filed a timely substantive appeal, and the AOJ certified the appellant’s appeal of the issue of payment or reimbursement for such expenses incurred from March 12 to 27 to the Board. The AOJ thus accepted the June 2015 communication as the appellant’s NOD and put her in place as the appellant of in the matter of payment or reimbursement for expenses incurred from March 12 to 27, related to the Veteran’s treatment prior to his death, the claims of which began within 90 days of the Veteran’s death. Thus, while in the June 2015 SOC the AOJ determined some of the individual, numerous claims of the medical providers not to have been timely submitted, the Board finds that the appellant’s claim was timely submitted, that she submitted a timely notice of disagreement and was recognized as appellant by the AOJ in the June 2015 SOC, and that she perfected an appeal to the Board. The Board thus finds the appellant’s claim of payment or reimbursement of non-VA medical services incurred from March 12 to 27, 2014, to be timely. Turning to the merits of the appellant’s claim, the record reflects that the Veteran received emergency treatment at Raulerson Medical Center (RMC) on March 12, 2014, after beginning to have labored breathing during a prolonged illness. He was found to be in septic shock and, based on the medical determination of the physicians at RMC, was transferred by helicopter, where he was intubated and sedated, to Lawnwood Regional Medical Center (LRMC) for intensive care. His prognosis was noted to be critical, and he remained primarily on life-support at LRMC until his death on March 27. March 14, 2014, VA treatment records reflect that VA was notified of the Veteran’s admission and condition, with sepsis and acute respiratory failure noted. In this case, the record reflects—and the June 2015 SOC notes—that VA made payment for the Veteran’s emergency treatment at RMC. Regarding his continued treatment, the Veteran’s admission to LRMC was clearly for an emergency condition whereby a VA-related facility was not feasibly available; the RMC physician’s decision to transport the Veteran to LRMC via helicopter based on necessity of saving the Veteran’s life rises at least to the equivalent level of ambulance personnel determining the nearest available appropriate level of care was at a non-VA medical center. In this regard, moreover, the emergency helicopter transportation provided would meet the conditions for payment or reimbursement under 38 U.S.C. § 1725 for ambulance services, including air ambulance services, for transporting a veteran under 38 C.F.R. § 17.1003. Furthermore, as noted in the June 2015 SOC, VA records reflect that LRMC contacted VA on March 26, stating that the Veteran’s family was requesting transfer of the Veteran “to VAMC when stable.” It was noted that medical records were requested for review and that, on March 27, LRMC again contacted VA and informed them of the Veteran’s death. In light of this, and the accompanying hospital records reflecting the Veteran’s condition from March 12 to 27, 2012, the Board finds that the Veteran did not stabilize during this period, so that he could have been transferred from LRMC to a VA-related facility, and the opinions of the treating medical providers reflect this. Therefore, resolving reasonable doubt in the appellant’s favor, the Board finds that the Veteran’s treatment from March 12 to 27, 2014, including helicopter transportation services, was for a medical emergency requiring immediate medical attention; an attempt to use VA-related facilities beforehand would not have been reasonable; and the Veteran did not stabilize during this period and could not have been transferred to a VA-related facility. Accordingly, payment or reimbursement of non-VA medical services incurred from March 12 to 27, 2014, must be granted. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Andrew Mack, Counsel