Citation Nr: 1007253 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 08-23 060A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Gainsville, Florida THE ISSUE Entitlement to reimbursement for unauthorized medical expenses incurred at Capital Regional Medical Center on June 9, 2008. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Counsel INTRODUCTION Information with respect to the Veteran's period of active service is not of record. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 determination from the Department of Veterans Affairs Medical Center (VAMC) located in Gainesville, Florida, which denied the above claim. In August 2009, a hearing was held before the undersigned Veterans Law Judge making this decision. FINDINGS OF FACT 1. The Veteran was the recipient of Department of Veterans Affairs (VA) hospital, nursing home, or domiciliary care within the 24-month period precedent to the treatment rendered on June 9, 2008. 2. In the context of a headache and hemorrhaging from the nose and the concern that such symptoms could be evidence of an aneurysm, a prudent layperson might reasonably expect that he or she should not delay in seeking medical attention. 3. There is no evidence that the Veteran had coverage under any medical care contract for payment or reimbursement in whole or in part for the treatment he received on June 9, 2008. 4. The Veteran was not eligible for reimbursement for these expenses under 38 U.S.C.A. § 1728 (West 2002). CONCLUSION OF LAW The criteria for entitlement to reimbursement for the expenses associated with the emergency treatment received by the Veteran at a private facility on June 9, 2008, have been met. 38 U.S.C.A. §§ 1725, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 17.1000-.1008 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board would first note that as this matter will be decided as a matter of law based on essentially undisputed facts, the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002) (VCAA) is arguably not applicable here. The Board further notes that as a result of the Board's decision to grant the benefit sought, any failure to notify and/or develop the claim under the VCAA cannot be considered prejudicial to the Veteran. The Veteran is seeking entitlement to payment or reimbursement for expenses incurred at a private medical facility on June 9, 2008. He went to the emergency room complaining of a headache. He had been in an altercation three days earlier and reported that he received direct blows to his head, face, and chest. Computed tomography (CT) of the head and facial bones showed a non-displaced nasal fracture and scalp hematoma. Thereafter, on the same day the Veteran went to the VA outpatient clinic to get medication per his recent trip to the emergency room. He had been told to fill Augmentin for a probable risk of a sinus infection as there was fluid in his sinuses. The VA examiner noted that he was not a trauma doctor and referred the Veteran to an ENT to follow up on his nasal fracture. The Board observes that the VAMC in Gainesville, Florida denied the Veteran's claim for payment or reimbursement on the basis that the care he received on that date was non- emergent. Although the Board does not find that the Veteran is eligible under the criteria set forth in 38 U.S.C.A. § 1728, 38 U.S.C.A. § 1725 provides general authority for reimbursement for the reasonable value of emergency treatment furnished in a non-Department facility for those Veterans who are active Department health-care participants (enrolled in the annual patient enrollment system and recipients of Department 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. Moreover, under this statute, "emergency treatment" is defined as medical care or services furnished when VA or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable, when such care or services are rendered in a medical emergency of such nature that a prudent lay person reasonably expects that delay in seeking immediate medical attention would be hazardous to life or health, and 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). Thus, the need for emergency treatment under 38 U.S.C.A. § 1725 is not based on medical expert opinion but rather whether a prudent lay person reasonably expects that delay in seeking immediate medical attention would be hazardous. Here, in the context of a headache and hemorrhaging from the nose and the concern that such symptoms could be evidence of an aneurysm, the Board finds that a prudent layperson might reasonably expect that he or she should not delay in seeking medical attention. The Board also notes that treatment records in the claims file reflect that the Veteran regularly obtained treatment at the VA and had done so within a 24- month period of the private medical treatment in question. The record also reflects that the closest VA medical facility was approximately 100 miles away and did not have an emergency room. The Board further notes that there is no evidence that the Veteran had coverage under any medical care contract for payment or reimbursement in whole or in part for the treatment received on June 9, 2008. Therefore, since the Veteran was the recipient of VA medical care within the 24-month period precedent to the treatment rendered on June 9, 2008, he could have reasonably determined that he should not delay in seeking medical attention based on a headache and hemorrhaging from the nose that could be symptomatic of an aneurysm, the closest VA emergency room facility was approximately 100 miles away, there is no evidence that the Veteran had coverage under any medical care contract for reimbursement for the treatment he received, and he was not eligible for payment of his expenses under 38 U.S.C.A. § 1728, the Board finds that the Veteran is eligible for reimbursement of these expenses under 38 U.S.C.A. § 1725. ORDER Entitlement to the reimbursement for the expenses associated with the emergency treatment received by the Veteran at a private facility on June 9, 2008 is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs