Citation Nr: 1529986 Decision Date: 07/13/15 Archive Date: 07/21/15 DOCKET NO. 13-31 419A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center (VAMC) in Columbus, Ohio THE ISSUE Entitlement to payment or reimbursement for the cost of medical treatment provided at Dublin Methodist Hospital on March 14, 2013. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from September 1989 to July 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2013 administrative decision by the VAMC in Columbus, Ohio, which denied a claim for payment or reimbursement for the cost of medical treatment provided at Dublin Methodist Hospital on March 14, 2013. The Veteran timely appealed. In rating decisions dated in October 2013 and March 2014, the RO denied multiple claims. By way of a March 2015 letter, the RO acknowledged receipt of a notice of disagreement, to include with respect to the issue of timeliness of a notice of disagreement. The March 2015 letter indicated that post-decision review would occur, which could include further development of the evidence and a hearing. As this is not a situation where VA has failed to acknowledge receipt of a notice of disagreement, see Manlincon v. West, 12 Vet. App. 238 (1999); and as the RO is taking action on the multiple claims while another claim was transferred to the Board by the VAMC, the Board will not take jurisdiction over the matters which were the subject of a notice of disagreement at this time. Lastly, in addition to reviewing the Veteran's paper combined duplicate health record file, the Board has surveyed the contents of her electronic claims file. FINDINGS OF FACT 1. At approximately 5:37a.m. on March 14, 2013, the Veteran presented to the Dublin Methodist Hospital emergency room due to severe abdominal pain and constipation, which required immediate medical attention and treatment. 2. At 5:37a.m. on March 14, 2013, the VA Ambulatory Care Center in Columbus, Ohio, was closed; and the nearest VAMC in Columbus, Ohio, was located approximately 16 miles away from the Veteran's home. 3. Given the Veteran's severe abdominal pain which prevented her from driving, it would appear that the Veteran acted as a reasonably prudent person would have in similar circumstances by seeking immediate medical attention at the nearest emergency room facility on March 14, 2013. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for payment or reimbursement for the cost of medical treatment provided at Dublin Methodist Hospital on March 14, 2013, have been met. 38 U.S.C.A. §§ 5107, 1725 (West 2014); 38 C.F.R. §§ 3.102, 17.1000-17.1005 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Because the claim in this case is governed by the provisions of Chapter 71 of Title 38 of the United States Code, the VCAA and its implementing regulations are not applicable. See Barger v. Principi, 16 Vet. App. 132, 138 (2002) and Lueras v. Principi, 18 Vet. App. 435 (2004). That notwithstanding, the Board has reviewed the case for purposes of ascertaining that the Veteran has had a fair opportunity to present arguments and evidence in support of her claim for payment or reimbursement for the cost of medical treatment. There is no outstanding evidence, and this case does not turn on a medical question for which an opinion would be necessary. In short, the Board concludes that requirements for fair development of the appeal have been met. II. Analysis The Veteran seeks payment or reimbursement for medical treatment rendered at Dublin Methodist Hospital on March 14, 2013. A Veteran may obtain reimbursement for medical expenses rendered at a non-VA facility under either 38 U.S.C.A. § 1725 or 38 U.S.C.A. § 1728. In this case, there is no evidence or allegation that the Veteran's treatment at Dublin Methodist Hospital on March 14, 2013, involved care for a service-connected disability or for a nonservice-connected disability aggravating an adjudicated service-connected disability. Additionally, the Veteran does not have a total disability permanent in nature resulting from a service-connected disability, and was not participating in a rehabilitation program under 38 U.S.C. Chapter 31. Thus, the provisions of 38 U.S.C.A. § 1728 do not apply. The criteria set forth in 38 U.S.C.A. § 1725 provide general authority for reimbursement for the reasonable value of emergency treatment furnished in a non-VA facility for those Veterans who are active VA health-care participants (enrolled in the annual patient enrollment system and recipients of VA hospital, nursing home, or domiciliary care under such system within the last 24-month period) and who are personally liable for such treatment; and not eligible for reimbursement under the provisions of 38 U.S.C.A. § 1728. See 38 U.S.C.A. § 1725 (West 2014); 38 C.F.R. § 17.1002 (2014). "Emergency treatment" under the statute is defined as medical care or services furnished when (A) VA or other federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable; (B) when such care or services are rendered in a medical emergency of such nature that a prudent layperson reasonably expects that delay in seeking immediate medical attention would be hazardous to life or health; and (C) only until such time as the Veteran can be transferred safely to a VA or other federal facility. 38 U.S.C.A. § 1725(f)(1). The implementing regulation, 38 C.F.R. § 17.1002, provides that the "emergency treatment" standard is met if there is 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 would 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. As a reference point, an emergency is also defined as "a sudden, generally unexpected occurrence or set of circumstances demanding immediate action." Hennessey v. Brown, 7 Vet. App. 143, 147 (1994) (citations omitted). An example of when VA or other federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable is when a Veteran is brought to a hospital in an ambulance and the ambulance personnel determine that the nearest available appropriate level of care is at a non-VA medical center. See 38 C.F.R. § 17.1002(c). In order to obtain reimbursement for non-VA emergency services furnished to a Veteran for nonservice-connected conditions, all of the criteria in § 1725 and its implementing regulations must be satisfied. See 38 C.F.R. §§ 17.100-17.1008. Additionally, regulations provide that a VA facility may be considered as not feasibly available when the urgency of the Veteran's medical condition, the relative distance of the travel involved, or the nature of the treatment required makes it necessary or economically advisable to use public or private facilities. 38 C.F.R. §§ 17.52, 17.53. No reimbursement or payment of services not previously authorized will be made when such treatment was procured through private sources in preference to available government facilities. 38 C.F.R. § 17.130. The Veteran is shown to be an active VA health-care participant. In this regard, she established gender-specific care in Women's Clinic in February 2013. The basic facts in this case are not in dispute. According to the Veteran, she suffered from constipation for a number of years; and described this situation as "quite different" from anything she previously had experienced. Specifically, the Veteran indicated that she had not had a bowel movement for over a week, and that she had already increased the dosages of stool softener and Miralax. On the evening before the emergency room visit, the Veteran tried a number of methods to relieve herself. She took three stool softeners and three Dulcolax. After about ten hours of no relief, she used a suppository, without success. On March 14, 2013, the Veteran reported being in so much pain that her stomach was bubbling and cramping, as if it were going to burst. She believed her last resort was to go to the emergency room, and felt her life and health were in danger. The Veteran reported that she was unable to drive herself, and she relied on her teenage son to drive her to the hospital and to carry her inside. The Veteran was treated in the emergency room, which temporarily relieved her constipation. Records received from the Dublin Methodist Hospital reflect that the Veteran arrived at the emergency room on March 14, 2013, at 5:37a.m., and she was evaluated for abdominal pain and constipation. Her pain was described as quite severe. The Columbus VAMC has denied the Veteran's claim for payment or reimbursement for the cost of medical treatment provided at Dublin Methodist Hospital on March 14, 2013, on the basis of her receiving "Non Emergent Care." This determination was made on the basis that the Veteran's condition did not meet the clinical definition of an emergency, that symptoms were present for one week, and that VA facilities were available. At the outset, the Veteran argues that VA facilities were not feasibly available on March 14, 2013, and that no urgent care facility was open. The record reflects that the Veteran lived in Hilliard, Ohio, at the time she sought treatment at Dublin Methodist Hospital. The Board takes judicial notice that the VA Ambulatory Care Center in Columbus, Ohio, opens at 8:00a.m. See generally Smith (Brady) v. Derwinski, 1 Vet. App. 235, 238 (1991) (Courts may take judicial notice of facts not subject to reasonable dispute). Thus, the VA Ambulatory Care Center in Columbus, Ohio, was not an available treatment option at the time that the Veteran sought treatment at 5:37a.m. on March 14, 2013. The implementing regulation for 38 U.S.C.A. § 1725 clearly requires a review of the evidentiary record to determine whether the Veteran's assessment to seek non-VA medical treatment would be consistent with that of a prudent person in similar circumstances. See 38 C.F.R. § 17.1002(b). In this case, the Veteran reported having constipation for a number of years, and she described this situation as "quite different." She tried several methods without relief, and was experiencing severe abdominal pain when she presented to the emergency room on March 14, 2013. The Board finds that these statements are credible and specifically collaborated by emergency room physicians. Her presenting complaints at Dublin Methodist Hospital were sufficient to warrant an immediate medical evaluation and initiate treatment. Given her severe abdominal pain, it would appear that the Veteran acted as a reasonably prudent person would have in similar circumstances by seeking immediate medical attention at the nearest emergency room facility on March 14, 2013. As the remaining requirements of 38 U.S.C.A. § 1725 have been met, the Board resolves reasonable doubt in favor of the Veteran by finding that she is entitled to payment or reimbursement for medical treatment under 38 U.S.C.A. § 1725 in connection with emergency room treatment at Dublin Methodist Hospital on March 14, 2013. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER The claim of entitlement to payment or reimbursement for the cost of medical treatment provided at Dublin Methodist Hospital on March 14, 2013, is granted. ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs