Citation Nr: 1300064 Decision Date: 01/02/13 Archive Date: 01/11/13 DOCKET NO. 10-39 224 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Gainesville, Florida THE ISSUE Entitlement to reimbursement or payment of unauthorized medical services rendered in connection with treatment received at Tallahassee Memorial Hospital on February 2, 2010. ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had active service from August 1970 to June 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2010 determination of the Medical Administration Services (MAS) of the Department of Veterans Affairs (VA) Medical Center in Gainesville, Florida, which denied the claim for payment of unauthorized medical services rendered in connection with treatment received at Tallahassee Memorial Hospital on February 2, 2010. FINDING OF FACT Unauthorized medical services rendered at Tallahassee Memorial Hospital on February 2, 2010, involved circumstances in which a prudent layperson would have reasonably expected that delay in seeking immediate medical attention for the initial evaluation and treatment would have been hazardous to life or health. CONCLUSION OF LAW The criteria for reimbursement or payment of unauthorized medical services rendered at Tallahassee Memorial Hospital on February 2, 2010, have been met. 38 U.S.C.A. § 1725 (West 2002 & Supp. 2012); 38 C.F.R. §§ 17.1000-17.1002 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In view of the favorable outcome of this appeal, compliance with the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)) need not be discussed. The Veteran seeks payment or reimbursement of medical expenses incurred in the course of treatment rendered on February 2, 2010, at Tallahassee Memorial Hospital. The Veteran does not have any adjudicated service-connected disabilities, nor was authorization for the hospital visit obtained in advance. Accordingly, the claim was considered under the Millennium Health Care and Benefits Act, Public Law 106-117, which provides for the reimbursement of non-VA emergency treatment for which the Veteran is personally liable in certain circumstances, regardless of service-connected status, if specified criteria are met. 38 U.S.C.A. § 1725; 38 C.F.R. § 17.1002. To be eligible for reimbursement under this law, all of the following conditions must be met: (a) The emergency services were provided in a hospital emergency department or a similar facility providing emergency care; (b) A prudent layperson would have reasonably expected that delay in seeking immediate medical attention for the initial evaluation and treatment would have been hazardous to life or health; (c) A VA or other Federal facility was not feasibly available and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson; (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) The veteran was enrolled in the VA health care system at the time the emergency treatment was furnished and had received medical services under 38 U.S.C. Chapter 17 within two years before the non-VA emergency treatment; (f) The veteran is financially liable to the non-VA provider of the emergency 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; (h) The veteran has unsuccessfully exhausted claims reasonably available against a third party in the case of an accident or work-related injury; and (i) The veteran is not eligible for reimbursement under 38 U.S.C.A. § 1728, which applies primarily to emergency treatment for a service-connected disability. 38 C.F.R. § 17.1002 (2012). Because all criteria must be met, the claim must be denied if there is a failure to satisfy any single criterion. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision means that all of the conditions listed in the provision must be met). Here, the claim was denied because the MAS found that the criterion for an emergency had not been met. See 38 C.F.R. § 17.1002(b). This section defines the conditions for an emergency as follows: 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); 38 C.F.R. § 17.1002 (2012). Amendments to the regulations pertaining to reimbursement for unauthorized medical care, effective January 20, 2012, do not affect this decision. In this regard, the prudent layperson standard for an emergency has been in effect in cases governed by 38 U.S.C.A. § 1725 since the inception of the Millennium Health Care and Benefits Act. More recent revisions have applied this standard to claims under 38 U.S.C.A. § 1728, pursuant to Swinney v. Shinseki, 23 Vet. App. 257, 264 (2009). There is no indication that the Veteran has not met any of the other criteria. He does not have any service-connected disabilities, he is liable for the costs, he was treated at a hospital emergency department or a similar facility held out as providing emergency care to the public, and he was enrolled in the VA health care system and had received medical services under authority of 38 U.S.C.A. Chapter 17 within the 24-month period preceding the furnishing of such emergency treatment. The nearest VA facility with an emergency department was in Lake City, 105 miles from Tallahassee. Although not addressed by the MAS, the Board finds that it was not feasibly available and that an attempt to travel to that facility would not have been considered reasonable by a prudent layperson, although, as discussed below, the Veteran did actually contemplate traveling to that facility. VA treatment records show that the Veteran telephoned a VA telephone triage line on February 2, 2010, at 12:10 p.m. The Veteran was informed that any advice was not an authorization for VA payment. The Veteran's chief complaint was of chest pain, which he said had been present for one minute. The "system concern" was noted to be "heart attack, angina," with recommended follow-up at an emergency room. The nurse commented that the Veteran stated that he had breathing problems and had been placed on Advair by an outside VA doctor. He said that his primary care provider was aware of this and that he had been instructed to continue on the medication until the sample supply was exhausted and then to go on VA-prescribed inhalers. He now called stating that he had read cramps were a side effect of Advair and that he had experienced two episodes of cramping in his chest and both arms. He stated that he had two episodes with a pain level of 1-2. During the second episode he felt faint. He stated that the duration of the episodes was about one minute each; the second episode had happened 20 minutes prior to this call. The Veteran identified the pain as in the area of the "pecs of the chest." He did not have crushing, severe, squeezing, or tight chest pain. He did not have a history of angina or myocardial infarction. He was advised to have someone take him to the closest emergency room for evaluation. He had an insurance issue and indicated that he may try to go to Lake City for evaluation. He was instructed to have someone drive him and not to drive on his own. He did not give a definitive answer as to whether he would seek treatment. He was also cautioned to call 911 if the pain returned and was more intense. He was at work at the time. The chief complaint was noted to be chest pain. Records from Tallahassee Memorial Hospital show that on February 2, 2010 the Veteran arrived at the Emergency Department at 1:01 p.m. According to the triage note, he was taking Advair, had developed frequent muscle cramping, and had been sent by his "PA." He had experienced chest pain. The handwritten notes of the initial evaluation noted a chief complaint of cramps. He had been taking Advair for asthma for 4 days, and had been getting cramps in the legs and anterior chest since Advair. The associated anterior chest pain radiated to the elbows. He was observed to be anxious. Various tests were performed, including blood tests, chest X-rays, and electrocardiogram, which were normal. At least one additional four-hour test was recommended, but the Veteran refused at that time. The initial impression was noted to be cramps in the legs and chest; the discharge diagnosis was muscle cramps. A summary indicated that his chief complaint was that he had been sent for doctor evaluation. The claim was denied on the basis that the Veteran had a four-day history of cramps, and that all tests conducted were normal. The fact that he had been advised to go to the local emergency department was good medical advice and not an authorization. In addition, the decision hinted that it was not certain that he even had chest pains, noting that the "C. Pain" could have been cervical pain, and that the discharge diagnosis was the nonspecific "muscle cramps." The Veteran contends that his emergency room visit was an emergency as described to him by the VA's own triage nurse who questioned him at length on the telephone that morning. The nurse stated that he should immediately go to the nearest hospital emergency room because he may be experiencing a heart attack. The Veteran said that surprised him because his symptoms did not seem that severe. He also stated that VA's own recommendation had been that he go to an emergency room and not a walk-in clinic for possible heart attack. He said that the intensity of the chest muscle cramping and radiating sensation down both arms was profound and definitely not previously experienced by him. This was the first time he had experienced cramping of that severity and that is why he called the VA. The minor cramping he had experienced a few days previously was determined to be insignificant by the local VA doctor's office. Prior to February 2, 2010, he had never experienced radiating sensations down his arms. The Board notes that in this case, it turned out that an actual emergency was not present, but the prudent layperson standard requires consideration of whether, under the circumstances present at the time the Veteran sought treatment at the private facility, a prudent layperson would reasonably expect that his condition was such that delay in seeking treatment would be hazardous to health or life. 38 C.F.R. § 17.1002(b); Swinney v. Shinseki, 23 Vet. App. at 264. It is not essential that the later medical work-up confirm the presence of a medical emergency. Swinney at 264. In this case, the Veteran was advised by a VA nurse, based on his symptoms as described over the telephone, to seek emergency treatment. Less than an hour later, he did so. The records of the Veteran's initial consultation at Tallahassee Memorial Hospital were handwritten in somewhat of a scrawl, and with little punctuation. So, it is difficult to ascertain the exact history. Nevertheless, a notation of cramps in the anterior "chest" can be deciphered. The MAS chose to interpret the report as showing that all symptoms had been present for 4 days. However, this is not the only, or even the most likely, interpretation of the handwritten notes. The Board finds that the notations may at least as likely be read as reporting that he had cramps in the legs and anterior chest for 4 days, but that the anterior chest pain radiating to the elbows was not part of that 4-day history of symptoms. Moreover, this is more consistent with the symptoms he described in the telephone call to VA less than hour earlier. At that time, the Veteran said that he had experienced two recent episodes of cramping in the chest and arms, and the most recent one, 20 minutes earlier, had also included his feeling faint. He was advised to go to the nearest emergency room for evaluation. He evidently considered going to the Lake City VA Medical Center (VAMC), which is 105 miles from Tallahassee, and in fact, initially seemed reluctant to seek treatment at all. The evidence supports the Veteran's contentions that, in essence, he was concerned about his symptoms when he telephoned VA, and that as a result of that telephone call, he became more alarmed and did seek treatment at the closest emergency room. Concerning his state of mind, the Board finds it significant that he was observed to be anxious on admission, and that once the initial tests had come back negative he refused more work-up including a more intensive study which would have taken 4 hours. The Board also observes that, although the VA nurse's recommendation did not constitute authorization for private treatment, the issue for consideration is whether a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. The Board finds that this 57-year old male Veteran, who was experiencing chest pain with, for the first time, radiation into the upper extremities, and who was advised over the telephone by a nurse to seek emergency room evaluation, based on his described symptoms, was in fact acting as a prudent layperson in seeking emergency treatment at a local facility. The fact that, ultimately, he did not have a heart attack or other emergency situation is irrelevant to this analysis. In this regard, the emergency department physician began conducting tests shortly after his arrival, and obtained numerous test findings before concluding that he had muscle cramps. Accordingly, for the foregoing reasons, the Board finds that payment of unauthorized medical expenses for the Veteran's treatment received at Tallahassee Memorial Hospital on February 2, 2010, is warranted. In reaching this determination, the benefit-of-the-doubt rule has been applied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to reimbursement or payment of unauthorized medical services rendered in connection with treatment received at Tallahassee Memorial Hospital on February 2, 2010, is granted. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs