Citation Nr: 1007243	
Decision Date: 02/26/10    Archive Date: 03/05/10

DOCKET NO.  08-13 056A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Gainesville, 
Florida


THE ISSUE

Entitlement to payment or reimbursement for unauthorized 
medical expenses incurred at a private medical facility on 
August 21, 2007.


ATTORNEY FOR THE BOARD

David Traskey, Associate Counsel


INTRODUCTION

The Veteran had active service from April 1964 to April 1966.  
He has no service-connected disabilities.

This matter came before the Board of Veterans' Appeals 
(Board) on appeal from decisions of November 2007 by the 
Department of Veterans Affairs Medical Center (VAMC) in 
Gainesville, Florida.
FINDINGS OF FACT

1.  The Veteran was treated on August 21, 2007 at Putnam 
Community Medical Center in Palatka, Florida.

2.  The Veteran has no service-connected disabilities.

3.  Resolving all doubt in the Veteran's favor, the Veteran's 
high blood pressure and headache on August 21, 2007 was of 
such nature that a prudent layperson would have reasonably 
expected that delay in seeking immediate medical attention 
would have been hazardous to life or health.


CONCLUSION OF LAW

Resolving all doubt in the Veteran's favor, the criteria for 
payment or reimbursement of unauthorized medical expenses 
incurred by the Veteran on August 21, 2007 at Putnam 
Community Medical Center have been met.  38 U.S.C.A. § 1725 
(West 2002); 38 C.F.R. §§ 17.1000-17.1008 (2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran contends that pursuant to the Veterans Millennium 
Health Care and Benefits Act, he is entitled to payment or 
reimbursement for medical care received on August 21, 2007 at 
Putnam Community Medical Center (PCMC) in Palatka, Florida.  
See 38 U.S.C.A. § 1725 (West 2002); 38 C.F.R. §§ 17.1000-
17.1008 (2009).

According to 38 C.F.R. § 17.1002, payment or reimbursement 
for emergency treatment for non-service-connected 
disabilities in non-VA facilities is made only if all of the 
following criteria are met:

(a)  The emergency services were 
provided in a hospital emergency 
department or 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 
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 was 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 function, 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 the 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 the 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 for a 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. 1728 for 
the emergency treatment provided (38 
U.S.C. § 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).    

The Board has reviewed the evidence of record.  Resolving all 
doubt in the Veteran's favor, the criteria for payment or 
reimbursement for unauthorized medical expenses incurred at a 
private medical facility on August 21, 2007 are met.

The Veteran presented to the PCMC emergency department on 
August 21, 2007 with a chief complaint of elevated blood 
pressure.  A notation on the triage note indicated that the 
Veteran's past medical history was significant for 
hypertension.  The onset of symptoms, according to the 
Veteran, occurred earlier that morning at 10 A.M.  The 
Veteran was seen at PCMC at 11 A.M. and the severity of his 
symptoms was described as "medium," but his condition was 
noted to be "improved."  He was found to be in no acute 
distress at the time of a physical examination.  

However, the Veteran also reported having a headache and he 
subsequently underwent a magnetic resonance imaging (MRI) 
scan of his brain.  The results of the MRI were interpreted 
to show no focal abnormalities, intracranial hemorrhage, or 
subdural collections.  The Veteran was prescribed medication 
to control his symptoms and he was discharged later that day.  
The clinical impression was elevated blood pressure and 
headache.  A medical bill associated with the Veteran's 
duplicate combined health record (CHR) for this episode of 
care totaled $2,042.00. 

In October 2007, VA conducted a clinical review of the 
medical records associated with the Veteran's episode of care 
on August 21, 2007.  A VA medical officer determined that 
there was no evidence of an "emergency situation" at the 
time care was rendered on the date in question.  The Board 
notes, however, that the VA medical officer neither cited to 
medical evidence of record nor provided a rationale to 
support this conclusion.  

The Veteran's claim for payment or reimbursement was denied 
in November 2007 on the grounds that no medical emergency 
existed.  Specifically, it was noted that care and services 
were not rendered in a medical emergency of such nature that 
delay would have been hazardous to life or health.

The Veteran submitted a timely notice of disagreement (NOD) 
in which he stated that he began receiving treatment for high 
blood pressure in January 2005 and that his readings were 
usually 120/70 and controlled with medication.  On August 21, 
2007, however, the Veteran indicated that the readings were 
145/80, 175/85, and 188/92.  He also described having head 
and neck pain (i.e., "like something cracking inside").  
These symptoms were exacerbated by movement.  The Veteran 
further stated "I am not a doctor, but was feeling very bad 
and with these symptoms I felt like my life was 
threatening."  The Veteran subsequently requested 
reconsideration of the November 2007 decision denying his 
claim for payment or reimbursement.

The Veteran's claim was reconsidered in March 2008, but the 
original decision denying the Veteran's claim for payment or 
reimbursement was upheld.  The VAMC issued a statement of the 
case (SOC) in April 2008 as well as a supplemental statement 
of the case (SSOC) in May 2008 in which it continued to deny 
the Veteran's claim for payment or reimbursement on the basis 
that his condition was non-emergent.

In his substantive appeal dated May 2008, the Veteran stated 
that his decision to seek immediate medical attention at a 
private facility was influenced by the severity of his head 
and neck pain, dizziness, increasing blood pressure, and 
proximity (or lack thereof) to a VA medical facility.  In 
this regard, the Veteran expressed his belief that his 
symptoms were hazardous to his health, particularly where, as 
here, they were "severe, and constantly increasing, and 
never experienced by me."         

Resolving all doubt in the Veteran's favor, the Board finds 
that the preponderance of the evidence supports a finding of 
payment or reimbursement for medical care rendered at PCMC on 
August 21, 2007.  At issue in this case is whether the 
Veteran's symptoms were of such nature that a prudent 
layperson would have reasonably expected that delay in 
seeking immediate medical attention would have been hazardous 
to life or health. (Emphasis added).  

The United States Court of Appeals for Veterans Claims 
(Court) has in the past held that lay testimony is competent 
regarding features or symptoms of injury or disease when the 
features or symptoms are within the personal knowledge and 
observations of the witness.  See Buchanan v. Nicholson, 451 
F.3d 1331, 1336 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 
F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 
F.3d. 1313 (Fed. Cir. 2009).  

In this instance, the Veteran indicated that his decision to 
seek immediate medical attention at a private facility was 
influenced by the severity of his head and neck pain, 
dizziness, increasing blood pressure, and proximity (or lack 
thereof) to a VA medical facility.  The Veteran described his 
symptoms as "severe" and "constantly increasing" and 
further stated that he had never experienced these symptoms 
before.  A PCMC triage note dated August 21, 2007 also 
described the severity of the Veteran's symptoms upon arrival 
as "medium."  It is noted that the Veteran has no medical 
training.  

On the other hand, VA medical officers determined that the 
Veteran's condition on August 21, 2007 was non-emergent and 
that care and services were not rendered in a medical 
emergency of such nature that delay would have been hazardous 
to life or health.  See decisions dated October 2007, 
November 2007, and March 2008.  As noted above, however, the 
VA medical officers neither cited to medical evidence of 
record nor provided a rationale to support this conclusion.  
As such, these opinions are entitled to limited probative 
weight.  

Based on the symptoms described by the Veteran, the evidence 
of record, and the absence of a rationale in the opinions 
provided by VA medical officers, 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.  Thus, payment or reimbursement 
of unauthorized medical expenses incurred by the Veteran on 
August 21, 2007 at Putnam Community Medical Center is 
warranted.

Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 
(VCAA), the United States Department of Veterans Affairs (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 2002 & Supp. 2009); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009).  In this case, 
the Board is granting in full the benefit sought on appeal.  
Accordingly, assuming, without deciding, that any error was 
committed with respect to either the duty to notify or the 
duty to assist, such error was harmless and will not be 
further discussed.  


ORDER

Payment or reimbursement of unauthorized medical expenses 
incurred by the Veteran on August 21, 2007 at Putnam 
Community Medical Center is granted.


____________________________________________
S.S. TOTH
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs