BVA9500119 DOCKET NO. 93-05 062 ) DATE ) ) On appeal from a decision by the Department of Veterans Affairs Medical Center in Bay Pines, Florida THE ISSUE Entitlement to payment of unauthorized medical expenses incurred from August 13 to 26, 1991, at Bayfront Medical Center. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Keith W. Allen, Associate Counsel INTRODUCTION The veteran served on active duty from April 1953 to August 1956. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 1991 decision by the Department of Veterans Affairs (VA) Medical Center (VAMC) in Bay Pines, Florida, which denied the veteran's claim for payment of unauthorized medical expenses incurred from August 4 to 26, 1991 at Bayfront Medical Center (subsequent to that decision, VA approved payment of the unauthorized expenses incurred from August 4 to 12, 1991; however, the remaining expenses, those incurred from August 13 to 26, 1991, remained unpaid, so the veteran appealed to the Board). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that VA should be responsible for payment of his medical expenses in question because he was not stable enough following his surgery to have been transferred to a local VAMC on April 13, 1991. He claims that his postoperative recovery was complicated by a Staph infection and that, despite contacting the VAMC shortly after being admitted to Bayfront Medical Center, he was told by personnel at the VAMC that VA would not be responsible for paying his medical bills at the private hospital because he was not being treated for a service-connected disability. He says that, after learning of this, he believed there was no reason for him to pursue a transfer to a VAMC because his medical expenses were not going to be paid by VA in any event. He points out though that it was later conceded by a VA physician that he was, in fact, treated at Bayfront Medical Center for a service-connected disability. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence supports the veteran's claim for payment of his unauthorized medical expenses incurred from August 13 to 26, 1991, at Bayfront Medical Center. FINDINGS OF FACT 1. The veteran is service-connected for several postoperative residuals of a duodenal ulcer, including a vagotomy, pyloroplasty, appendectomy, and laparotomy for adhesions. This disorder is rated 20 percent disabling. 2. He was hospitalized at Bayfront Medical Center from August 4 to 26, 1991, for treatment of complications related to his service-connected gastrointestinal disorder; his condition throughout his hospital stay was guarded and never sufficiently stabilized to permit a transfer to a local VAMC. CONCLUSION OF LAW The criteria for payment of unauthorized medical expenses incurred from August 13 to 26, 1991, have been met. 38 U.S.C.A. §§ 1728, 5107 (West 1991); 38 C.F.R. §§ 17.80, 17.80a (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Brief Factual Background The veteran is service-connected for several postoperative residuals of a duodenal ulcer, including a vagotomy, pyloroplasty, appendectomy, and laparotomy for adhesions. This disorder is rated 20 percent disabling. He is also service- connected for two other disabilities which are not relevant to the subject matter of this appeal. On August 4, 1991, the veteran was admitted to Bayfront Medical Center (Bayfront) in St. Petersburg, Florida, complaining of abdominal pain and nausea, without vomiting. Records show that he had had two previous abdominal operations related to his service-connected gastrointestinal disorder, the latter procedure involving a laparotomy and partial bowel resection. On the day of his admission to Bayfront, he denied experiencing any fever or chills, but said he had been anorexic. After physical examination and laboratory tests were completed, it was suspected that he had a small bowel obstruction, so he was prepared for surgery. Later that day, he underwent an exploratory laparotomy, with partial small bowel resection, at which time a Baker tube was placed in his left upper quadrant. After his surgery, he was kept in the intensive care unit until the following day, whereupon he was moved to a general bed. Postoperatively, there was some Staph epidermidis from the veteran's blood cultures. He remained febrile, so he was continued on intravenous (IV) antibiotics. His Baker tube was left to gravity drainage and he gradually defervesced, but he had copious feculent nasogastric secretions, even though his nasogastric tube was on suction. By August 13th, a contrast study of his bowel was checked which demonstrated very slow peristalsis, but no small bowel obstruction. He was started on total parenteral nutrition. Additionally, he began leaking succus entericus around his Baker tube site (which had started on postoperative day four). His nasogastric tube was stopped on August 14th, and the Baker tube began to be pulled on August 15th. It was removed on August 17th (postoperative day 13). He was having less and less drainage from the Baker tube site, but he continued to have enterocutaneous fistula. He had completed his 14 days of antibiotics by postoperative day 18, so they were stopped, and he had minimal drainage as of postoperative day 19. Finally, after he had no drainage from the site on postoperative day 20, August 23rd, he was started on a special diet and did well. The veteran was discharged from Bayfront on August 26, 1991. His midline incision was well healed. His Baker tube site had only a bud of granulation tissue, but no leakage, and his barium had been cleared from his colon. Follow-up treatment was planned with his private physician, as well as with the attending physician (Thomas Wells, M.D.) at Bayfront. Records in the claims folder, including a Report of Contact, show that personnel at Bayfront contacted the VAMC in Bay Pines, Florida on August 5, 1991, which was the day following the veteran's admission to that facility. A discussion ensued as to whether the veteran met the eligibility criteria for payment of his unauthorized hospital expenses at Bayfront. VA personnel made efforts to contact Dr. Wells' office to clarify the etiology of the veteran's abdominal pain. However, these efforts were unsuccessful. As a result, on August 8th, a VA physician concluded (by default) that the veteran was not being treated for a service-connected disability while at Bayfront and, therefore, would not be entitled to payment of any unauthorized medical expenses incurred while hospitalized there. The veteran was notified of this decision by letter on August 12th. A copy of the decision was sent to Bayfront. (Later, after records concerning his hospitalization at Bayfront had been obtained, it was conceded by VA that he had been treated for his service- connected gastrointestinal disorder during his hospital stay at Bayfront.) Dr. Wells reported in an October 1991 statement that he believed that the veteran's more recent surgical history was related to surgery he had had in the late 1960's for residuals of his service-connected gastrointestinal disorder. In February 1992, after reviewing the medical evidence on file, a VA physician determined that the veteran's condition sufficiently stabilized on August 12, 1991, thereby making it safe for him to have been transferred to the local VAMC. It was noted that the nearest VAMC to Bayfront was located approximately seven miles away. While testifying at a September 1992 hearing, the veteran contended that his condition had not sufficiently stabilized as of August 12, 1991, so that he could have been safely transferred to the local VAMC. He said that, at that time, he was still experiencing complications from the surgery he had had, including a Staph infection, which prevented him from being moved from one hospital to another. He pointed out that he was not actually discharged until several days later, on August 26th, at the time when his attending physician believed that he had healed enough to leave the hospital. He said that, even then, he was scheduled for follow-up treatment with his doctor and that he continues to take medication. His representative pointed out that the treatment that the veteran received while at Bayfront was for his service-connected gastrointestinal disorder. After the veteran's hearing was completed, a VA physician again reviewed the records concerning the veteran's hospital stay at Bayfront and reiterated that, in his professional opinion, the veteran was stable enough to have been transferred to a VAMC on August 12th. The VA physician made specific mention of a notation in the hospital records that a blood culture grew staph epidermidis, but he did not believe that this warranted a reversal in his decision to deny the veteran's claim. In his October 1992 statement, Dr. Wells reported that the veteran's surgery at Bayfront in August 1991 was emergent, requiring a very difficult small bowel dissection and insertion of a Baker tube. He said that inserting a Baker tube in this kind of operation was unusual, but was the safest option available given that the veteran could have easily developed multiple small bowel fistulae. He said the veteran initially required intensive care management due to his extensive operation and that his Baker tube did prevent re-obstruction (as was documented in a small bowel series that was run on August 13th). He noted, however, that the veteran developed an enterocutaneous fistulae which he said is a common complication of a Baker tube. He mentioned the course of treatment that he prescribed after the veteran's operation was completed, and he said that it was not until August 26th that the veteran was finally able to maintain a self-sustained diet. Dr. Wells claimed that the veteran's course of postoperative treatment was complicated due to the unique nature of his medical circumstances. Because of this, Dr. Wells believed that it was in the veteran's best interest, medically and ethically speaking, to continue to be treated by him since he had first hand knowledge of the particular circumstances surrounding the surgery that had been performed and the course of treatment that had been instituted. In November 1992, a VA physician reviewed the statement from Dr. Wells, in addition to the other evidence already on file, and reiterated that, in his opinion, the veteran was stable for transfer to a VA facility as of August 12th. II. Legal Analysis The veteran's claim is well-grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim which is not inherently implausible. All relevant facts have been properly developed and, therefore, VA's duty to assist him has been satisfied. Id. In order to be entitled to payment or reimbursement for medical expenses incurred without prior authorization from VA, all of the following must be shown: (a) That the treatment was either: (1) for an adjudicated service- connected disability, or (2) for a non-service-connected disability associated with and held to be aggravating an adjudicated service- connected disability, or (3) for any disability of a veteran who has a total disability, permanent in nature, resulting from a service- connected disability; and (b) That a medical emergency existed of such nature that delay would have been hazardous to life or health; and (c) That no VA or other Federal facilities were feasibly available and an attempt to use them beforehand or obtain prior VA authorization for the services required would not have been reasonable, sound, wise, or practicable, or treatment had been or would have been refused. 38 U.S.C.A. § 1728; 38 C.F.R. § 17.80. Claims for payment of unauthorized medical expenses will not be approved for any period beyond the date on which the medical emergency ended. A medical emergency shall be deemed to have ended at that point when a VA physician has determined that, based on sound medical judgment, a veteran could have been transferred to a VA facility for continuation of treatment or could have reported for said treatment. See 38 C.F.R. § 17.80a. The fact that VA agreed to pay for the veteran's unauthorized medical expenses incurred from August 4 to 12, 1991, means that it has been acknowledged that his treatment at Bayfront was emergent and for a service-connected gastrointestinal disorder. The issue then becomes at what point did this emergency end, such that he could have been safely transferred to a local VAMC. With regard to this critical question, there is probative evidence for and against his claim. A VA physician reviewed the pertinent medical records and concluded that, while unquestionably not stable enough to have been completely discharged from hospital care on August 12th, the veteran was sufficiently stable to permit a safe transfer to a VA facility which was only seven miles away. In rendering his decision, he specifically noted that he found no evidence of a Staph infection, per se, in the hospital records, despite the veteran's contentions to the contrary and some mention in the records of a staph epidermidis. He also noted that insertion of a Baker tube would not have prevented a safe transfer. On the other hand, Dr. Wells, the veteran's attending physician at Bayfront, submitted two statements which, when considered in the aggregate, tend to refute the conclusion of the VA physician. Specifically, Dr. Wells commented on the unique nature of the surgery which he had performed and the postoperative course of treatment that he had prescribed. He said he believed that the veteran's interest were best served by overseeing the course of recovery since it was he who had first hand knowledge of the particular circumstances involved. This point can not be disputed since the VA physician did not have access to the hospital records until a much later date and time. However, it also can not be disputed that Dr. Wells has a financial interest in a ruling that is favorable to the veteran since he is one of the parties that will be paid. This ordinarily would cast at least some doubt on his credibility, but what he has said is consistent with what was reported in the medical records. Whenever, as here, reasonable doubt arises concerning what date the veteran's medical emergency ended, it is resolved in the favor of the veteran. See 38 U.S.C.A. § 5107(b). The Board believes that Dr. Wells' opinion is at least as probative as that of the VA physician, and these are the only two professional opinions of record. As such, based on relative equipoise, the veteran is entitled to payment of the unauthorized medical expenses incurred from August 13 to 26, 1991, at Bayfront Medical Center. ORDER The claim for payment of unauthorized medical expenses incurred from August 13 to 26, 1991, at Bayfront Medical Center is approved. M. CHEEK Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.