Citation Nr: 20004053 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 18-28 175A DATE: January 16, 2020 ORDER Payment or reimbursement of medical expenses incurred from August 10 to 22, 2017, at St. Cloud Hospital (SCH) is granted. FINDINGS OF FACT 1. The Veteran’s initial August 6 to 9, 2017, treatment and surgery following a plane accident was rendered in a medical emergency reasonably expected to have been hazardous to health if immediate medical attention had been delayed, no VA-related facility was feasibly available, and obtaining prior authorization for such treatment was not practicable; at that time he had a service-connected disability considered permanent and total by VA. 2. Prior to the Veteran’s continued, non-emergency inpatient rehabilitation at SCH from August 10 to 22, 2017, VA was notified that he could be safely transferred to a VA facility, but the transfer of the Veteran was not accepted. CONCLUSION OF LAW The criteria for payment of medical expenses incurred from August 10 to 22, 2017, at SCH have been met. 38 U.S.C. §§ 1728, 5107; 38 C.F.R. §§ 17.120, 17.121. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1966 to May 1968. This appeal is before the Board of Veterans’ Appeals (Board) from an October 2017 decision of the VA Veterans Health Administration (VHA). The Board remanded the appeal to the agency of original jurisdiction (AOJ) in February 2019. The Veteran received emergency treatment beginning August 6, 2017, at Renville County Hospital, and was thereafter transferred to SCH, for several traumatic injuries resulting from a plane accident including a T11-T12 fracture, sternal fracture, and right distal fibula fracture requiring open and internal fixation, which was performed on August 9, 2017. It was medically determined that he required subsequent inpatient rehabilitation, which was given at SCH from August 10 to 22. At the time of his treatment at SCH, the Veteran had a service-connected disability considered permanent and total by VA. In the absence of prior appropriate authorization under 38 U.S.C. § 1703, under 38 U.S.C. § 1728, a Veteran who has a total disability, permanent in nature, resulting from a service-connected disability is entitled to payment or reimbursement of unauthorized medical expenses incurred at a non-VA facility when it is also shown that (1) the services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health, and (2) no VA or other Federal facilities were feasibly available and an attempt to use them beforehand would not have been reasonable. 38 U.S.C. § 1728; 38 C.F.R. § 17.120. The provisions of 38 U.S.C. § 1728 are implemented under 38 C.F.R. §§ 17.120-32. Claims for payment or reimbursement of the costs of emergency treatment not previously authorized may only 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 a VA facility (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. § 17.121. The record does not reflect, and the AOJ has never contended, that the Veteran’s initial August 6 to 9, 2017, treatment and surgery following a plane accident was not for a medical emergency or that a VA-related facility was feasibly available to provide such emergency treatment. As reflected its October 2017 decision and an April 2018 statement of the case, the AOJ denied payment the Veteran’s reimbursement claim for the August 10 to 22 treatment on the basis that it was not pre-authorized and was nonemergent. As reflected in his October 2017 notice of disagreement and June 2018 substantive appeal, the Veteran asserts that, during and following his emergency treatment, he attempted to transfer to a VA facility, but such transfer was rejected, as the available VA facility was at capacity and did not have any beds. In a statement attached to his June 2018 substantive appeal, the Veteran provided specific dates and times of contact between him, his spouse, and his social worker and VA regarding his required inpatient rehab, the possibility of transfer to a VA facility, and VA’s responsibility in paying. Notably, the Veteran asserted that on August 8, 2017, at 3:19 pm his social worker called to authorize referral to VA for inpatient rehabilitation, and the available VA Medical Center put the Veteran on the list for transfer, but notified them that they could not secure a bed as they were at capacity. Resolving reasonable doubt in the Veteran’s favor, the Board finds that prior to his continued, non-emergency inpatient rehabilitation at SCH from August 10 to 22, 2017, VA was notified that he could be safely transferred to a VA facility, but the transfer of the Veteran was not accepted. The Board initially notes that, in its February 2019 remand, citing the Veteran’s “statement documenting communications with” VA, it instructed the AOJ to “[a]ssociate with the claims file all VA [Medical Center] administrative, telephone, and treatment notes related to the Veteran’s treatment at the private hospital from August 10, 2017 to August 22, 2017.” However, while—as noted above—the Veteran specifically asserted contacting VA on August 8, 2017, and being told that VA could not secure a bed for inpatient rehabilitation as they were at capacity, the VA records obtained by the AOJ on remand do not begin until August 9, 2019. There are no records, or indication that the AOJ attempted to obtain records, dated prior to August 9, even though from the available records it appears there had been communication between the Veteran and VA regarding his non-VA treatment prior to that date. However, even in the absence of VA documentation of the August 8 communication reported by the Veteran, the Board finds the Veteran’s statement—that his social worker called to authorize referral to VA for inpatient rehabilitation, and the available VA Medical Center put the Veteran on the list for transfer, but notified them that they could not secure a bed as they were at capacity—credible given the subsequent VA treatment records contained in the file. An August 9 VA nurse’s note indicates that the Veteran’s social worker at SCH had reviewed the Veteran’s plan of care and discussed with his wife “concerns she had regarding VA coverage.” The note indicates that VA personnel “[s]poke with [the social worker] who met with the [Veteran] and wife regarding [their] concerns, they plan to go to [inpatient rehab] when medically stable and after surgery completed.” It was further noted that the Veteran would be contacted by VA upon his discharge from the hospital following his inpatient rehab. An August 10 note reflects that SCH personnel had called VA inquiring about the Veteran’s hospital visit following his ankle surgery and that she had “some billing and prior authorization questions”; a request was noted for someone to “please call her back and update her on this information.” An August 11 VA note further states: “Please determine if the Veteran is wanting the ortho, neurosurgery through VA.” The next note is dated August 14, and states that the “Veteran is currently residing at [SCH]. He transferred to inpatient therapy. Will follow up when discharged from [SCH].” An August 17 note reflects that VA received documentation from SCH asking for specific equipment to be issued based on assessments at the inpatient rehab program. It was noted that, at minimum, the Veteran would need a wheelchair to get out of the hospital and come over to VA for further assessment of needs. It was further noted that the VA nurse was “[u]nsure of whether we can get him a wheelchair prior to his discharge on Tuesday,” but that a call was placed to the wheelchair clinic with the request. All of these VA notes beginning August 9, 2017, reflect that the Veteran and his wife, as well as SCH personnel, were repeatedly in contact with VA regarding payment of the Veteran’s inpatient rehab at SCH. They also reflect that VA was fully aware of the Veteran’s status as a patient receiving inpatient rehab at SCH, with VA indicating that it would follow-up with the Veteran after his discharge from SCH for such treatment. They further reflect that SCH was in continued contact with VA regarding the Veteran’s treatment and requests from VA for specific services, such as equipment. Such notes do not contain any indication that payment by VA for the Veteran’s non-VA care might be precluded due to the lack of request for a transfer to VA, or that VA was at any point suggesting or requesting transfer of the Veteran to a VA facility for completion of his inpatient rehab. The Board finds such notes consistent with the Veteran’s assertion that he attempted to arrange transfer to a VA facility on August 8, 2017, but that VA effectively rejected such transfer due to a lack of capacity. Accordingly, payment or reimbursement of medical expenses from August 10 to 22, 2017, at SCH must be granted. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). [SIGNATURE ON NEXT PAGE] JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Andrew Mack, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.