Citation Nr: 1213419 Decision Date: 04/12/12 Archive Date: 04/26/12 DOCKET NO. 10-47 007A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Murfreesboro, Tennessee THE ISSUE Entitlement to reimbursement for private medical treatment expenses incurred at Memorial Hospital on February 18, 2008. WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The Veteran served on active duty with the United States Army from December 1965 to December 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 decision by the Department of Veterans Affairs (VA) Medical Center, Fee Services Section, in Murfreesboro, Tennessee. In March 2012, the Veteran and his wife testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran received medical treatment at Memorial Hospital on February 18, 2008 for symptoms which he perceived to be indicative of an adverse reaction to a new medication. 2. The Veteran's symptoms treated at Memorial Hospital on February 18, 2008 were 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. 3. The Veteran had first attempted to seek medical treatment for his symptoms on February 18, 2008 at a VA facility, but such facility was closed on that date for the Presidents' Day holiday; any additional attempt by the Veteran to use other VA facilities beforehand would not have been considered reasonable by a prudent layperson. CONCLUSION OF LAW The criteria for entitlement to reimbursement for private medical treatment expenses incurred at Memorial Hospital on February 18, 2008 have been met. 38 U.S.C.A. §§ 1703, 1725, 1728 (West 2002 & Supp. 2011); 38 C.F.R. §§ 17.52, 17.53, 17.55, 17.120, 17.1000-17.1008 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist The Board is granting in full the benefit sought on appeal. Any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. Analysis Payment for or reimbursement of emergency services for nonservice-connected conditions in non-VA facilities may be authorized under the Veterans Millennium Health Care and Benefits Act. See 38 U.S.C.A. § 1725; 38 C.F.R. § 17.1002. To be eligible for reimbursement under this authority, all of the following conditions must be satisfied: (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 (this standard would be met if there were an emergency medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) 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); (c) A VA or other Federal facility/provider was not feasibly available and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson (as an example, these conditions would be met by evidence establishing that a Veteran was brought to a hospital in an ambulance and the ambulance personnel determined that the nearest available appropriate level of care was at a non-VA medical center); (d) The claim for payment or reimbursement for any medical care beyond the initial emergency evaluation and treatment is for a continued medical emergency of such a nature that the Veteran could not have been safely discharged or transferred to a VA or other Federal facility (the medical emergency lasts only until the time the Veteran becomes stabilized); (e) 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; (f) The Veteran is financially liable to the provider of emergency treatment for that treatment; (g) The Veteran has no coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the emergency treatment (this condition cannot be met if the Veteran has coverage under a health-plan contract but payment is barred because of a failure by the Veteran or provider to comply with the provisions of that health-plan contract, e.g., failure to submit a bill or medical records within specified time limits, or failure to exhaust appeals of the denial of payment); (h) 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 or in part, the Veteran's liability to the provider; and (i) The Veteran is not eligible for reimbursement under 38 U.S.C.A. § 1728 for the emergency treatment provided (38 U.S.C.A. § 1728 authorizes VA payment or reimbursement for emergency treatment to a limited group of Veterans, primarily those who receive emergency treatment for a service-connected disability). See 38 C.F.R. § 17.1002. Private treatment records reflect that the Veteran reported to the emergency room of Memorial Hospital on February 18, 2008 with the following symptoms: tremors, shaking, poor P.O. intake, difficulty sleeping, and weight loss, all thought to be an adverse reaction to a new medication he had been taking over the past month (Abilify). After undergoing various tests, he was diagnosed with insomnia, tremors, and possible serotonin syndrome. At his March 2012 hearing, the Veteran and his wife testified that after the Veteran was prescribed Abilify by a VA doctor, he began to develop symptoms which worsened over the course of the following month. Over Presidents' Day weekend in February 2008, the Veteran and his wife read about the potential side effects of Abilify and realized that the Veteran's symptoms matched the description of an adverse drug reaction. They attempted to seek treatment for the Veteran at a VA facility on Monday, February 18, 2008, but that facility was closed on that date for the Presidents' Day holiday. The Veteran testified that because his symptoms had worsened to the point where he could not drive, walk, sit still, eat, sleep, or do anything, and because he had already lost 30 pounds, he and his wife considered his condition an emergency and sought treatment on February 18, 2008 at Memorial Hospital's emergency room. His wife testified that she did not believe he would have lived a lot longer because the shape that he was in on that date was so severe. Based on the evidence of record, there is no question that the Veteran was provided treatment at an emergency room on February 18, 2008, that he was enrolled with the VA health care system at that time, and that he is financially liable to Memorial Hospital for the treatment they provided on that date. In addition, the Veteran is not shown to have any other insurance to cover this expense, and he is not eligible for reimbursement under 38 U.S.C.A. § 1728 for the emergency treatment provided. The Veteran's claim was denied because it was determined that a prudent layperson would not have reasonably viewed the visit as an emergency or thought that a delay in seeking immediate attention would have been hazardous to life or health. The Board finds that the Veteran's symptoms treated on February 18, 2008 were 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. The private medical evidence explicitly documents that the Veteran experienced severe symptoms of an adverse drug reaction. The Veteran had first attempted to seek medical treatment for his symptoms on February 18, 2008 at a VA facility, but such facility was closed for the Presidents' Day holiday. The Board finds that any additional attempt by the Veteran to use other VA facilities beforehand would not have been considered reasonable by a prudent layperson. Geographical research reflects that Memorial Hospital is closer to the Veteran's home than any VA facility other than the one he had attempted to visit but had found to be closed on that date. VA reimbursement for private medical treatment expenses incurred at Memorial Hospital on February 18, 2008 is warranted. ORDER Entitlement to reimbursement for private medical treatment expenses incurred at Memorial Hospital on February 18, 2008 is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs