Citation Nr: 21075755 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 17-22 385A DATE: December 21, 2021 ORDER Payment or reimbursement of medical expenses incurred from February 8 to 16, 2016, at CHI Health Mercy Council Bluffs (CHI) is granted. FINDING OF FACT Following the Veteran's February 3 medical emergency, reasonable attempts to request his transfer to a Department of Veterans Affairs (VA) facility were made during his February 3 to 16 treatment at CHI, and transfer of the Veteran was not accepted by VA. CONCLUSION OF LAW The criteria for payment or reimbursement of medical expenses incurred from February 8 to 16, 2016, at CHI are met. 38 U.S.C. §§ 1728, 5107; 38 C.F.R. §§ 17.120, 17.121. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2002 to August 2002. This appeal is before the Board of Veterans' Appeals (Board) from a May 2016 decision of the VA Veterans Health Administration. In May 2019 decision, the Board granted payment or reimbursement of medical expenses incurred from February 3 to 7, 2016, at CHI, but denied such payment or reimbursement from February 8 to 16, 2016. The Veteran appealed the May 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2021 Memorandum Decision, the Court remanded the case to the Board. As an initial matter, the Board notes that while the issue on appeal is characterized as payment or reimbursement of medical expenses incurred from February 8 to 16, 2016, the medical record is conflicting as to whether the Veteran was discharged from the hospitalization that resulted in such expenses on February 15 or February 16, 2016. While both dates are noted as the Veteran's discharge date in the CHI treatment records at various points, closer inspection of such records appears to show that the Veteran was discharged on the evening of February 15. Moreover, both the Veteran's attorney and the VA Secretary, in their briefs to the Court, conceded that the date of the Veteran's discharge from CHI was February 15. However, the February 16 date of discharge was a finding made by the agency of original jurisdiction in May 2016 and March 2017, by the Board in its May 2019 decision, and by the Court in its May 2021 Memorandum Decision in characterizing and adjudicating the issue on appeal. In light of this, the Board will continue to characterize the issue as such. Legal Criteria A Veteran is entitled to payment or reimbursement of unauthorized medical expenses incurred at a non-VA facility for treatment of a service-connected disability, or for treatment of any condition when such Veteran has a total disability, permanent in nature, resulting from a service-connected disability, 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. 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, the 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. § 17.121(a). 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(b). Factual Background The Veteran has the service-connected psychiatric disability of unspecified bipolar disorder and related disorder, which is rated 100 percent effective in October 2013. He was hospitalized at Mary Greeley Medical Center (MGMC) on February 3, 2016, for an emergency due to his psychiatric disability. He was described as "unstable and unsafe," and hospital staff secured a court order for a 48-hour hold to prevent the Veteran from leaving with a physician recommendation for the Veteran's involuntary admission to an inpatient mental health unit. There were no appropriate beds at MGMC, so hospital staff sought to transfer the Veteran for psychiatric care and evaluation. A private chief medical officer statement was submitted to an Iowa district court judge on February 3, 2016, at 6:40am, with the assessment that the Veteran was "seriously mentally impaired." He was bipolar and psychotic, and an imminent danger to himself or others due to his psychotic state and delusions. On February 3, 2016, the Veteran was transferred from MGMC to CHI in a "detention services vehicle" in compliance with the court order, where he remained hospitalized in the mental health unit from February 3 to February 16, 2016. In granting payment or reimbursement of medical expenses incurred from February 3 to 7, 2016, at CHI in its May 2019 decision, the Board found that the private nurses at MGMC and the Veteran's spouse made reasonable attempts to request transfer of the Veteran to a VA facility on February 3, 2016, even though this was not explicitly documented in the record. The finding was based on the Veteran's assertions that he, his spouse, and private nurses at MGMC contacted by telephone the nearest VA Medical Center (VAMC) in Des Moines, Iowa, on multiple occasions on February 3, 2016, to effectuate a transfer to that facility, which the Board found credible. The Board also found the Veteran and both private hospitals were subject to a court order dated on February 3, 2016, mandating that he be transferred to a private facility, CHI, for inpatient mental health treatment until February 7, so that another attempt to request transfer of the Veteran to a VA facility prior to that date would not have been reasonable. However, in denying payment or reimbursement from February 8 to 16, 2016, in its May 2019 decision, the Board determined that, during this period, the VAMC in Omaha, Nebraska, was feasibly available for transfer and treatment of the Veteran, noting that the Omaha VAMC was only a 21-minute drive (9.5miles) from CHI and provided inpatient psychiatric care services for Veterans. Thus, the nature of the Veteran's treatment for a psychiatric disorder would not have been a deterrent to seeking inpatient care at the Omaha VAMC. The Board also found that the Veteran could have been safely transferred to the VAMC in Omaha, for continuation of treatment during this period, but that there was no evidence or assertions that any attempts were made to transfer to Veteran to a VA facility or that VA would have rejected any such transfer. In its March 2021 Memorandum Decision, the Court found that "the Board failed to discuss potentially favorable evidence" that the Veteran's "condition had worsened since his February 3 admission." Specifically, the Board "failed to discuss private inpatient medical records from CHI indicating that (1) on February 7, [the Veteran] was 'out of control,' exhibiting 'aggressive and threatening' behavior toward another patient, and required restraint; (2) on February 8, his condition had worsened further; and (3) on February 9, his condition remained 'unchanged' and 'severe.'" (Citations omitted). Payment or reimbursement of medical expenses incurred from February 8 to 16, 2016, at CHI is granted. At some point following expiration of the February 3 court order on February 7, 2016, "reasonable attempts" to request transfer of the Veteran to a VA facility would require CHI to make further attempts, beyond those made on February 3, to request transfer of the Veteran to a VA facility. The provisions of 38 U.S.C. § 1728 and 38 C.F.R. § 17.121 do not provide for reimbursement of expenses of indefinite hospitalization only because there is an initial, unsuccessful attempt to transfer the Veteran to a VA facility. This is particularly the case where, as here, it appears that while an attempt to transfer the Veteran to a VA facility on February 3 had been made and VA had effectively refused transfer, VA was likely not aware that the Veteran had been hospitalized at CHI. This is so even if it is ultimately decided by VA and non-VA medical professionals that transfer to a VA facility is not feasible or appropriate, and that the Veteran should remain hospitalized at the non-VA facility. The question in this particular case is whether, given its facts, reasonable attempts to request transfer of the Veteran to a VA facility were made where the only such attempt was the initial, unsuccessful February 3 attempt, so as to allow payment for continued, non-emergency treatment at CHI from February 8 to 16, 2016. Given the circumstances of this case as a whole, and resolving reasonable doubt in the Veteran's favor, the Board finds that such reasonable attempts were made. CHI hospital records reflect that, on the February 3 date the Veteran was admitted, it was anticipated that 3 days of hospitalization were necessary. On February 5, the Veteran was noted to have been gradually improving, with moderate symptoms causing impairment in day to day functioning; his providers were hopeful that he was beginning to respond to Seroquel medication, and 4-5 days of were hospitalization estimated. On February 7, it was noted that the Veteran remained psychotic, out of control, and extremely delusional, with periods of agitation associated with aggression. His symptoms were noted to be severe and affecting his functioning. Associated symptoms were disorganization and confusion, with wandering into other people's rooms and disrobing himself. On February 8, it was noted that, since the last encounter, symptoms of Chronic Paranoid Schizophrenia were gradually worsening and were rated as severe and currently causing impairment in day to day functioning. Associated symptoms included bad mood and behavior problems, and his clinical condition was gradually worsening. Precipitating events included more irritability, with having to be briefly restrained the previous night. It was noted that day that the Veteran had previously disallowed information about his hospitalization to be shared with his wife, but signed a release so that medical staff could talk to her about his treatment plan, committal, and medication. On February 9, his condition was noted to be unchanged. On February 10 it was noted that, since the last encounter, symptoms of Chronic Paranoid Schizophrenia were gradually improving, rated as moderate. Precipitating events included that he was tearful at his hearing but accepted commitment. Treatment notes indicate that the Veteran continued to improve, and on February 13 it was noted that his symptoms were associated with stress from being in the hospital. The medical record suggests that it was reasonable to initially attempt to transfer the Veteran to a VA facility on February 3 for treatment of his psychiatric condition, prior to beginning treatment at CHI. However, once treatment began and continued at CHI, given his condition and the circumstances of his hospitalization, further repeated attempts to transfer him to a VA facility during his ongoing, intensive psychiatric treatment were not necessarily as reasonable. The hospitalization lasted for approximately two weeks and included extensive daily psychotherapy, group therapy, and medication for symptoms of significant agitation, delusions, and inappropriate behavior, with symptoms intermittently worsening to the level of being severe with erratic, aggressive, and threatening behavior, requiring the use of restraints and forced sedation. Moreover, the record suggests that the expected period of commitment was repeatedly changed and extended due to unexpected changes in the Veteran's condition and behavior, and that the stress of the Veteran's hospitalization itself was contributing to his symptoms, indicating that transfer to a brand new and unfamiliar psychiatric facility for completion of treatment may not have been reasonable. Under such circumstances, it is more than plausible that the lack of repeated attempts during the Veteran's psychiatric commitment and treatment at CHI from February 3 to 16, following the initial VA refusal of transfer on February 3, was not unreasonable. Resolving reasonable doubt in the Veteran's favor, the Board finds that reasonable attempts to request transfer of the Veteran to a VA facility were made during the Veteran's February 3 to 16 treatment at CHI, following his initial February 3 medical emergency, and that transfer of the Veteran was not accepted by VA. Accordingly, payment or reimbursement of medical expenses incurred from February 8 to 16, 2016, at CHI must be granted. See 38 U.S.C. § 5107. 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.