Citation Nr: 21001672 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 03-18 414A DATE: January 11, 2021 ORDER Payment or reimbursement for unauthorized expenses incurred for care at Spohn Hospital, Beeville, Texas from July 13 to July 16, 2000 is denied. Payment or reimbursement for unauthorized expenses incurred for care at Spohn Hospital, Beeville, Texas and Methodist Hospital, San Antonio, Texas from August 23 to September 9, 2000 is granted. Payment or reimbursement for unauthorized expenses incurred for care at Healthsouth Rehabilitation Institute of San Antonio, San Antonio, Texas from October 1 to October 21, 2000 is denied. FINDINGS OF FACT 1. On May 23, 2001, VA received a claim for payment for care provided at Spohn Hospital, Beeville, Texas from July 13 to July 16, 2000. 2. The Veteran was treated at Spohn Hospital, Beeville, Texas and Methodist Hospital, San Antonio, Texas from August 23 to September 9, 2000 for complications following a gastric bypass surgery, including retention of fluids, leaking fluids through the skin, and fever. See April 2004 Board Hearing. 3. At the time of treatment, the Veteran was enrolled in the VA health care system. He had no other insurance and was financially liable for the costs of his treatment. The nearest VA medical center with an emergency department was a two-hour drive from his home. See id. 4. On May 25, 2001, VA received a claim for payment for care provided at Healthsouth Rehabilitation Institute of San Antonio, San Antonio, Texas from October 1 to October 21, 2000. CONCLUSIONS OF LAW 1. The criteria for payment or reimbursement for unauthorized expenses incurred for care at Spohn Hospital, Beeville, Texas from July 13 to July 16, 2000 are not met. 38 U.S.C. §§ 1703, 1725, 5107; 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120, 17.121, 17.1002. 2. The criteria for payment or reimbursement for unauthorized expenses incurred for care at Spohn Hospital, Beeville, Texas and Methodist Hospital, San Antonio, Texas from August 23 to September 9, 2000 are met. 38 U.S.C. §§ 1703, 1725, 5107; 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120, 17.121, 17.1002. 3. The criteria for payment or reimbursement for unauthorized expenses incurred for care at Healthsouth Rehabilitation Institute of San Antonio, San Antonio, Texas from October 1 to October 21, 2000 are not met. 38 U.S.C. §§ 1703, 1725, 5107; 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120, 17.121, 17.1002. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Introduction The Veteran served on active duty in the Navy from December 1967 to December 1971. This case comes before the Board on appeal from a September 2001 decision of a VA Medical Center in San Antonio, Texas. The Veteran died in November 2011. The appellant is the Veteran’s surviving spouse. A May 2020 VA memo indicates that a rebuild of the file failed to obtain many records crucial to the appellant’s claim, including her VA Form 9 (Appeal to the Board), notice of disagreement, denial notification letter, and all medical records. Where a veteran’s medical records are missing or otherwise unavailable through no fault of the veteran, VA has a heightened duty to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing a claim, and to explain its findings and conclusions. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (citing Russo v. Brown, 9 Vet. App. 46, 51 (1996)). 1. Dates of Service: August 23 to September 9, 2000 Legal Background VA will pay for or reimburse the cost of unauthorized care at non-VA facilities for veterans who are enrolled in the VA health care system and have received VA care within the last twenty-four months and who are personally liable for non-VA treatment costs, regardless of whether the treated condition is a service-connected condition or related thereto, under the following conditions: (a) The emergency services were provided in a hospital emergency department or a similar facility held out as providing emergency care to the public; (b) 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; (c) 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; (d) At the time the emergency treatment was furnished, the veteran was enrolled in the VA health care system and had received medical services under authority of 38 U.S.C. chapter 17 within the 24-month period preceding the furnishing of such emergency treatment; (e) The veteran is financially liable to the provider of emergency treatment for that treatment; (f) The veteran does not have coverage under a health-plan contract that would fully extinguish the medical liability for the emergency treatment; (g) If the condition for which the emergency treatment was furnished was caused by an accident or work-related injury, the claimant has exhausted without success all claims and remedies reasonably available to the veteran or provider against a third party for payment of such treatment; and the veteran has no contractual or legal recourse against a third party that could reasonably be pursued for the purpose of extinguishing, in whole, the veteran’s liability to the provider; and (h) The veteran is not eligible for reimbursement under 38 U.S.C. § 1728 for the emergency treatment provided. 38 U.S.C. § 1725; 38 C.F.R. § 17.1002. A “medical emergency” under both 38 U.S.C. § 1728 and § 1725 means a condition of such nature 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). VA will not ordinarily grant payment or reimbursement of the costs of unauthorized emergency treatment after the date on which the medical emergency ended. VA considers that an emergency ends when, in the sound medical judgment of the designated VA clinician at the VA facility, the veteran who received treatment: (1) Could have been transferred from the non-VA facility to a VA or federal facility for continuation of treatment, or (2) Could have reported to a VA or federal facility for continuation of treatment. Payment or reimbursement of the costs of unauthorized emergency treatment may be granted for the period after the emergency ends, only if: (1) The non-VA facility notified VA at the time the veteran could be safely transferred to a VA or federal facility 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 or federal facility (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(b), (c). Entitlement to Payment or Reimbursement under 38 U.S.C. § 1725 At the appellant’s April 2004 Board hearing, the presiding Veterans’ Law Judge noted that the Veteran had no service-connected disabilities at the time of his death. Therefore, the Veteran’s claims fall under 38 U.S.C. § 1725, set forth above. As noted above, all medical records in this case are unavailable. For this reason, there is no direct evidence as to whether the condition for which the Veteran was treated from August 23 to September 9, 2000 was a medical emergency, or if it was, as to when the medical emergency ended. The only available evidence regarding this period of treatment is the appellant’s April 2004 hearing testimony. The appellant was present for the Veteran’s emergency hospital treatment and is competent to report events she herself witnessed. Moreover, the Board finds her to be credible, and bears in mind its heightened duty to consider the applicability of the benefit of the doubt rule in light of the absence of any medical records. The appellant testified that the Veteran was enrolled in the VA health care system, though she did not say whether he had received VA care within the twenty four months before August 23, 2000. Affording the appellant the benefit of the doubt, the Board finds that he had. See 38 C.F.R. § 3.102. The appellant also testified that they had no insurance and were personally liable for non-VA treatment costs. The appellant testified that the Veteran was taken to the emergency room for symptoms of fluid retention, fluid leaking through the skin, and fever, all complications of a recent gastric bypass surgery. In light of the fact that the Veteran was recovering from serious surgery and had already been to the emergency room once for complications following this surgery (July 13 to July 16, 2000), the Board finds that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. Therefore, the Board finds that the condition for which the Veteran was treated from August 23, to September 9, 2000 at Spohn Hospital, Beeville, Texas and Methodist Hospital, San Antonio, Texas was an emergency condition. Finally, the nearest VA medical center with an emergency department was the Audie L. Murphy, VA Medical Center in San Antonio, around two hours from the Veteran’s residence (Spohn Hospital was an eight minute drive). Therefore, the Board finds that a VA facility was not feasibly available and an attempt to use it beforehand would not have been considered reasonable by a prudent layperson. Accordingly, payment or reimbursement for unauthorized expenses incurred for this treatment is warranted. Attempt to Transfer to a VA Facility The appellant testified that the Veteran was initially transferred from Spohn Hospital to Methodist Hospital, and then at a certain point during his stay at Methodist Hospital was found to be sufficiently stable to be discharged for rehabilitation. She testified that at this point Methodist Hospital contacted VA but was told that VA did not have any rehabilitation beds available. Therefore, the Veteran was sent to a private rehabilitation facility instead. Moreover, the appellant testified that at various points throughout the course of this episode of care, she made known to VA and private care providers that the Veteran should be transferred to a VA facility as soon as possible. She testified that she answered more than one phone call from VA, asking whether she was willing to transfer the Veteran to a VA facility, to which she answered yes, assuming the treating doctors said he was “stable enough.” Altogether, the appellant’s testimony suggests that reasonable attempts were made to transfer the Veteran to a VA facility, possibly even before he was determined to be ready to be discharged for rehabilitation, but that such attempts were not successful. To the extent there remains any reasonable doubt, all such doubt is resolved in the appellant’s favor. See 38 C.F.R. § 3.102. Therefore, because reasonable attempts were made to request transfer of the Veteran to a VA facility after the end of the medical emergency, which were not successful, the Board finds that payment or reimbursement for unauthorized costs incurred for care at Spohn Hospital, Beeville, Texas and Methodist Hospital, San Antonio, Texas is warranted even after the time that the emergency ended—in other words for the entire period of service from August 23, to September 9, 2000. 2. Dates of Service: July 13 to July 16, 2000; and October 1 to October 21, 2000 Claims under 38 U.S.C. § 1725 must be received within 90 days after the latest of the following: (1) The date that the veteran was discharged from the facility that furnished the emergency treatment; (2) The date of death, but only if the death occurred during transportation to a facility for emergency treatment or if the death occurred during the stay in the facility that included the provision of the emergency treatment; or (3) 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. In this case, neither the original claim forms nor the medical records of the episodes of care are of record. However, a September 2001 internal VA record indicates that on May 23, 2001 VA received a claim for payment or reimbursement for unauthorized non-VA care provided from July 13 to July 16, 2000 by “Spohn Bee County Hosp,” and on May 25 VA received a claim for payment or reimbursement for unauthorized non-VA care provided from October 1 to October 21, 2000 by “Healthsouth Riosa.” The appellant testified at her April 2004 Board hearing that From July 13 to July 16, 2000 the Veteran was treated at Spohn Hospital, Beeville, Texas and from October 1, to October 21, he was treated at Healthsouth Rehabilitation Institute of San Antonio, San Antonio, Texas. The acts of the agency of original jurisdiction (AOJ) are entitled to a presumption of regularity, and in the absence of clear evidence to the contrary, the Board presumes that the AOJ has properly discharged its duties. See Ashley v. Derwinski, 2 Vet. App. 62, 64 (1992); see also Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994). Therefore, absent any evidence to the contrary, the Board presumes that the dates of receipt of claims reflected in the September 2001 internal VA record are accurate. Given this, the record reflects that these claims were received 311 and 216 days, respectively, after the Veteran was discharged from the non-VA facility furnishing emergency care. Therefore, the Board finds that these claims were not timely filed and must be denied. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Timmerman 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.