Citation Nr: 18155296 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-19 543A DATE: December 4, 2018 ORDER Entitlement to payment or reimbursement for unauthorized medical expenses incurred at Providence Holy Family Hospital from in Spokane, Washington during the period from September 26, 2015, through September 28, 2015, is granted. FINDINGS OF FACT 1. The Veteran incurred private medical expenses from September 21 through September 28, 2015, for treatment at Providence Holy Family Hospital, a non-VA medical facility; payment or reimbursement of private medical expenses incurred at Providence Holy Family Hospital from September 21 through September 25, 2015, was approved, but payment or reimbursement of expenses incurred from September 26 through September 28, 2015, was denied. 2. The only factor at issue in the current appeal is at what point the Veteran became stabilized such that he could be discharged or transferred to a VA or other Federal facility; all other criteria under the provisions of 38 U.S.C. § 1725 have been satisfied. 3. Resolving all reasonable doubt in the Veteran’s favor, the evidence of record suggests that the care received from September 26 through September 28, 2015, was for a continued medical emergency of such a nature that the Veteran could not have been safely discharged or transferred to a VA facility. CONCLUSION OF LAW The criteria for payment or reimbursement for unauthorized medical expenses incurred at Providence Holy Family Hospital from in Spokane, Washington during the period from September 26 to September 28, 2015, have been met. 38 U.S.C. §§ 1725, 1728, 5103A, 5107 (2012); 38 C.F.R. §§ 17.120, 17.121, 17.1002 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active naval service from September 1971 to August 1977. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an January 2016 administrative decision issued by the Department of Veterans Affairs (VA) Medical Center in Spokane, Washington. Medical reimbursement The Veteran is claiming entitlement to payment or reimbursement of private medical expenses incurred from September 26 to September 28, 2015, for treatment at a non-VA medical facility. The Board notes that payment or reimbursement of private medical expenses incurred at Providence Holy Family Hospital from September 21 through September 25, 2015, was already approved. The Veteran was hospitalized from September 21 to September 28, 2015, at Providence Holy Family Hospital, a private facility in Spokane, Washington. Specifically, on September 21, 2015, the Veteran presented to Providence Holy Family Hospital, with a fever, dehydration with hyponatremia, pleural effusion and questionable pneumonia. The assessment was sepsis with hypotension. The hospitalization summary from Providence Holy Family Hospital shows that the Veteran was placed on rate control medication, and IV antibiotics during the Veteran’s period of hospitalization. The Veteran was started on cefepime and ciprofloxacin IV and received 7 days of IV double coverage. Medical treatment records note the Veteran was initially found to be in stable condition on September 26, 2015. However, as noted below, medical treatment notes show that the Veteran went into atrial fibrillation while walking to the bathroom on September 27, 2015. In support of his claim for payment or reimbursement of expenses incurred from September 26 through September 28, 2015, the Veteran reported that his wife made multiple phone calls to ask when and if the Veteran should be transferred to a VA facility in Spokane, Washington. The Veteran reported that his wife was told that the Veteran should not be transferred during each phone call. Moreover, he reported that Providence Holy Family Hospital contacted VA stating that the Veteran was currently receiving treatment under private care. The Veteran also stated that at no point during his period of hospitalization was he provided an opportunity to decide if he wanted to be transferred to a VA facility. In this case, VA conceded that the Veteran’s treatment was under emergency circumstances, and thus paid for his emergency inpatient treatment at the private hospital from September 21 through September 25, 2015. The Agency of Original Jurisdiction (AOJ) determined, however, that by September 26, 2015, the Veteran’s condition had stabilized such that further payment for medical expenses was not authorized by law. With regard to stabilization, claims for payment or reimbursement of the costs of emergency hospital care or medical services not previously authorized will not be approved for any period beyond the date on which the medical emergency ended. For the purpose of payment or reimbursement of the expense of emergency hospital care not previously authorized, an emergency shall be deemed to have ended at that point when a VA physician has determined that, based on sound medical judgment, a Veteran who received emergency hospital care could have been transferred from the non-VA facility to a VA medical center for continuation of treatment for the disability. From that point on, no additional care in a non-VA facility will be approved for payment by VA. 38 C.F.R. § 17.121 (2018). Further, as defined by statute, “emergency treatment” includes treatment rendered (1) until such time as the Veteran can be transferred safely to a VA facility or other Federal facility and such facility is capable of accepting such transfer; or... (2) until such time as a Department facility or other Federal facility accepts such transfer if: (A) 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 (B) 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. Id. In this case, the only issue in dispute under the provisions of 38 U.S.C. § 1725 is at what point the Veteran became stabilized such that he could be discharged or transferred to a VA or other Federal facility. In Bellezza v. Principi, it was held that under 38 C.F.R. § 17.121, when determining when an emergency has ended, “[a] VA physician who has not provided the medical care or services in question must, perforce, consider the opinions of the attending physicians in order to make a sound medical determination related to the care and services in question.” 16 Vet. App. 145, 149 (2002). It was also noted that “[s]ound medical judgment would seem to require, at a minimum, that the VA physician making the determination examine and account for available medical records.” Id. at 150. Evidence documenting that the Veteran could have been transferred safely at any time between September 26 and September 28, 2015, to a VA facility for continuation of medical treatment is lacking. There is no indication in VA’s records that a physician had in fact approved the Veteran’s transfer and the Board can find no notation in the records provided by Tallahassee Memorial Healthcare that the Veteran was evaluated and deemed stable for transfer to a VA facility after September 26, 2015. While there is a notation that the Veteran was found to be in stable condition as of September 26, 2015, there is no indication that he was stable enough for transfer. Additionally, a September 27, 2015, medical note indicates that the Veteran went into atrial fibrillation after walking to the bathroom. Further, it does not appear that the AOJ obtained a VA opinion regarding when the Veteran could have been transferred to a VA medical center. Moreover, the record does not reflect that the Veteran ever refused transfer to a VA facility. In fact, the Veteran has credibly reported that his wife alerted VA about the Veteran’s private treatment in an attempt to determine when the Veteran should be transferred to a VA facility. Given the AOJ’s failure to properly develop the Veteran’s claim and because there is evidence that would suggest that the Veteran was not stabilized as of September 27, 2015, the Board finds it appropriate to simply resolve reasonable doubt in favor of the Veteran and grant payment or reimbursement of medical expenses incurred in connection with treatment provided at Providence Holy Family Hospital from September 26 to September 28, 2015. Accordingly, the Board finds that the evidence for and against the claim is at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to payment or reimbursement for unauthorized medical expenses incurred at Providence Holy Family Hospital from September 26 to September 28, 2015, is warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Cannaday, Associate Counsel