Citation Nr: 18156845 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16-19 232A DATE: December 11, 2018 ORDER Payment or reimbursement of medical expenses incurred from November 2, 2015, to December 22, 2015, at Tampa General Hospital (TGH) is granted. FINDING OF FACT The Veteran received emergency treatment at TGH on July 9, and remained hospitalized there until December 23, 2015; the appellant’s medical group provided non-emergency services from November 2 to December 22 as part of such hospital treatment; by November 2, TGH had repeatedly notified the Department of Veterans Affairs (VA) that the Veteran could be transferred to a VA facility and made and documented reasonable attempts to request transfer of the Veteran to VA, including contact with numerous VA personnel including the VA Transfer Coordinator; and VA did not accept transfer of the Veteran to a VA facility until December 23, 2015. CONCLUSION OF LAW The criteria for payment or reimbursement of medical expenses incurred from November 2, 2015, to December 22, 2015, at TGH have been met. 38 U.S.C. §§ 1725, 5107; 38 C.F.R. §§ 17.1000-1008. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1975 to April 1975. The appellant represents one of the Veteran’s medical providers at TGH. This appeal is before the Board of Veterans’ Appeals (Board) from an April 2015 decision of a VA Medical Center (VAMC). The record reflects that the Veteran received emergency room and hospital treatment at TGH from July 9, to December 23, 2015. At issue are expenses from gastrology treatment given the Veteran during such hospital treatment from November 2 to December 22, by the appellant’s group. 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. 38 C.F.R. § 17.1002. 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). On July 9, 2015, the Veteran was admitted to TGH for left-side weakness and slurred speech, believed to be related to a cardiovascular accident. Following the point of medical stabilization, he continued to require constraints for continued agitation deemed secondary to metal illness. As reflected in a December 24, 2015, VA note, during his time at TGH the Veteran developed acute neurologic changes with dysphagia. He was eventually transferred to a VA hospital on December 23, 2015. The appellant provided gastrology services to the Veteran during the dates in question as part of his necessary treatment while hospitalized at TGH. As reflected in an April 2016 statement of the case, the appellant’s claims for reimbursement were denied on the basis that, while the Veteran had emergency treatment and would, pursuant to 38 U.S.C. § 1725, be eligible for reimbursement of expenses on July 9, 2015, he was deemed to have stabilized by July 10. Thus, his treatment from July 10 to December 23, 2015, was deemed to be past the point of stability, so that the Veteran could have been transferred to a VA facility. In this case, the appellant’s claims must be granted. Records, including nurse and social worker notes, from both TGH and VA, show that as early as July 15 VA was contacted regarding the Veteran. Such notes indicate that on July 22, 2015, TGH requested, and discussed with VA, transfer of the Veteran to a VA facility, but that it was noted that no beds were currently available for the Veteran at a VA facility. TGH and VA continued communication regarding the Veteran, and on August 12 it was again noted that a bed was not available for the Veteran at a VA facility. On September 1, TGH spoke with the VA Transfer Coordinator regarding placement of the Veteran. TGH again contacted the VA Transfer Coordinator on September 17. Notes beginning December 4 reflect that again TGH and VA discussed transfer of the Veteran to a VA facility. December 15 through 17 notes indicate that requests to transfer the Veteran to a VA facility were escalating to a higher level of leadership. On December 17, it was noted that VA would accept transfer of the Veteran, and would inform TGH when transfer would be possible, and on December 18, it was noted that a VA facility did not yet have an appropriate bed for the Veteran to be transferred. On December 23 a bed became available, transportation was ordered, and the Veteran was transferred to a VA facility. While the record reflects that the Veteran had stabilized during treatment at TGH and could have been transferred to a VA facility, the notes discussed above reflect that by November 2, TGH had repeatedly notified VA that the Veteran could be transferred to a VA facility and made and documented reasonable attempts to request transfer of the Veteran to VA; this included contact with numerous VA personnel, including the VA Transfer Coordinator. However, the Veteran was not transferred to a VA facility until December 23, 2015, when VA finally accepted such transfer. Thus, resolving reasonable doubt in the appellant’s favor, the Board finds that TGH met the requirements of 38 C.F.R. § 17.1005(c) for payment or reimbursement of the costs for continued, non-emergency treatment—including that provided by the appellant from November 2 to December 22—following emergency care, pursuant to 38 U.S.C. § 1725. Accordingly, payment or reimbursement of medical expenses to the appellant incurred from November 2, 2015, to December 22, 2015, at TGH, 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