Citation Nr: 1300987 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 09-34 295 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Alexandria, Louisiana THE ISSUE Entitlement to payment or reimbursement for unauthorized medical expenses incurred at the Natchitoches Regional Medical Center on April 5, 2007. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. Woodward Deutsch, Counsel INTRODUCTION The Veteran had active service from June 2002 to June 2006, including service in Iraq. This matter comes before the Board of Veterans' Appeals (Board) from a June 2009 determination of the Department of Veterans Affairs (VA), Medical Center in Alexandria, Louisiana. The Board observes that, while the September 2009 certification of appeal references claims for skin infections, posttraumatic stress disorder, and a left knee disability, none of these issues appears to be in appellate status. On the contrary, it appears that agency of original jurisdiction has merely used the September 2009 certification to list the disabilities for which the Veteran is in receipt of service connection, rather than the issue that is currently on appeal. FINDINGS OF FACT 1. As of April 5, 2007, the Veteran was in receipt of service connection for a left knee disability (patellofemoral pain syndrome). She also was enrolled in the VA health care system and had received medical service under the authority of Chapter 17 of Title 38 U.S. Code within the preceding 24 months. 2. On April 5, 2007, the Veteran was treated in the emergency room of the Natchitoches Regional Medical Center for an illness (influenza A), which demanded immediate medical attention. Moreover, a reasonably prudent layperson would have concluded that delaying treatment would have resulted in a hazard to the Veteran's life or health. 3. At the time of the Veteran's private emergency room treatment, no VA or other federal medical facility was feasibly available and an attempt to access such a facility would not have been considered reasonable by a prudent layperson. 4. The Veteran is financially liable to the April 5, 2007, provider of emergency treatment, in the amount of $347.00, for which she has no health insurance coverage for payment or reimbursement and has no claim against any third party. CONCLUSION OF LAW The criteria for payment or reimbursement of expenses incurred for private emergent medical care provided on April 5, 2007, have been met. 38 U.S.C.A. § 1725 (West 2002 & Supp. 2012); 38 C.F.R. §§ 17.1000-17.1008 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As this case concerns a legal determination of whether the Veteran is entitled to reimbursement for medical expenses under 38 U.S.C.A. §§ 1725 or 1728, the provisions of the Veterans Claims Assistance Act of 2000 (VCAA) are not applicable. Even if the VCAA were for application, however, any discussion of VA's duty to notify and assist would be unnecessary in light of the Board's decision to grant the Veteran's claim in full. The Veteran presently seeks reimbursement for treatment furnished on April 5, 2007, by a non-VA medical facility (Natchitoches Regional Medical Center). She maintains that, at the time she sought treatment from that private medical center, her symptoms warranted immediate attention and no VA or other federal facility was feasibly available. As of April 5, 2007, the Veteran's sole service-connected disability was patellofemoral pain syndrome of the left knee. Significantly, she does not contend, nor does the record otherwise show, that the non-VA medical treatment in question was rendered in connection with that service-connected disability. Moreover, there is no evidence that the Veteran was then, or has ever been, in receipt of a total and permanent rating due to one or more service-connected disabilities. As such, the provisions of 38 U.S.C.A. § 1728 and 38 C.F.R. § 17.120 are inapplicable to her medical reimbursement claim. See Fritz v. Nicholson, 20 Vet. App. 507, 509-10 (2006). Accordingly, the Board will now consider that claim under alternate laws and regulations. Where, as here, a claimant seeks reimbursement for emergency treatment at a non-VA facility for a nonservice-connected condition, the evidence must demonstrate that (I) the emergency services were provided in a hospital emergency department or a similar facility providing emergency care; (II) a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health; (III) 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; (IV) care beyond the initial emergency evaluation and treatment was 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, with the medical emergency lasting only until stabilization of the Veteran; (V) 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.A., Chapter 17 within two years before the non-VA emergency treatment; (VI) the Veteran is financially liable to the non-VA provider of the emergency treatment; (VII) the Veteran has no health insurance coverage for payment or reimbursement for the emergency treatment; (VIII) the Veteran has unsuccessfully exhausted claims reasonably available against a third party in the case of an accident or work-related injury; and (IX) 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. See 38 U.S.C.A. § 1725; 38 C.F.R. § 17.1002. A review of the prior determinations of the Alexandria VA Medical Center and the contentions of the Veteran indicate that the only facts in dispute are whether (I) her April 5, 2007, treatment was emergent in nature and whether (II) VA facilities were feasibly available to provide the necessary care. Accordingly, the Board will confine its analysis to those two factors. The Veteran's April 2007 private treatment records reveal that she presented to the emergency room at the Natchitoches Regional Medical Center with complaints of headaches, fever, nausea, vomiting, and diarrhea. Those symptoms were found to comport with a diagnosis of influenza A for which the Veteran received an intramuscular injection of Zofran and a dose of Immodium, administered orally. She thereafter was prescribed additional medication to treat her remaining symptoms, which eventually abated without recurrence or further complication. Significantly, since the time of the above hospitalization, the Veteran has consistently maintained that her influenza symptoms were so acute and severe as to require immediate medical attention. She has further maintained that she did not reasonably feel she could delay treatment for the additional hour, or longer, it would have taken her to travel from her home in Natchitoches to the closest VA medical facility. The Board observes that, while a layperson, the Veteran is competent to describe the symptoms underlying her April 2007 influenza attack. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). She also is competent to offer an account of her own impressions of the severity of those symptoms. Id. Moreover, the Board has no basis to question the veracity of the Veteran's account in the absence of any contradictory evidence. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Indeed, there is nothing in the claims file to suggest that the Veteran has exaggerated her influenza symptoms in the pursuit of her medical reimbursement claim. On the contrary, the Veteran's reported symptoms are all documented in the private treatment records she has submitted in connection with her claim. Those records show that the medical care the Veteran received on April 5, 2007, was of an emergent nature in that it encompassed both extensive diagnostic testing and the administration of a medication (Zofran) that would not have been prescribed for flu-like symptoms warranting no more than casual outpatient treatment. Additionally, the record reflects that, since the Veteran's April 2007 private hospitalization, she has made diligent efforts to document the medical care received therein. She also has gone to great lengths to explain why such treatment was emergent in nature and could not have been reasonably furnished at a VA Medical Center, given how far away she lived from such a facility. In this regard, the Board observes that there is no reasonable dispute as to the Veteran's home address on the date in question nor its proximity to the closest VA medical facilities in Alexandria and Shreveport, Louisiana. As such, the Board may properly take judicial notice that, as of April 5, 2007, the distance from the Veteran's residence to the Natchitoches Regional Medical Center was approximately two miles; the Alexandria VA Medical Center was approximately 60 miles; and the Shreveport VA Medical Center was approximately 80 miles. See Smith (Brady) v. Derwinski, 1 Vet. App. 235, 238 (the Board "may take judicial notice of facts not subject to reasonable dispute." (emphasis omitted) (citing Fed. R. Evid. 201 (b))). Given how significantly closer the private hospital was to the Veteran's residence on the date in question, in comparison to the two most proximate VA Medical Centers, the Board concludes that a prudent person in the Veteran's position would not have reasonably sought treatment from those VA facilities. See Washington. Moreover, the Board notes that the Veteran's July 2009 notice of disagreement and August 2009 VA Form 9 each provide a highly detailed, competent, and credible account of the onset, duration, severity, and symptomatology of her influenza attack on April 5, 2007. See Buchanan v. Nicholson, 452 F.3d at 1335; see also Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005) (it is the Board's responsibility, as fact-finder, to determine the credibility and weight to be given to the evidence). The Board finds these detailed accounts, coupled with the other evidence of record, to be highly probative in favor of the Veteran's claim. Furthermore, the Board finds that, given the overall circumstances present on April 5, 2007, a reasonably prudent person would have concluded that delaying immediate medical treatment on that date would have presented a hazard to health or life. In light of the foregoing, the Board finds that the overall evidence of record, medical and lay, sufficiently establishes that a prudent layperson would have considered that the symptoms present on April 5, 2007, to be of such a nature that to delay seeking immediate medical care would present a hazard to health or life, within the context of 38 U.S.C.A. § 1725 and 38 C.F.R. § 17.1002. See Swinney v. Shinseki, 23 Vet. App. 257, 264-65 (2009) (noting that the reasonable person test has both subjective and objective elements). The Board further finds that, as of that date, a VA or other federal facility was not feasibly available and a prudent person would not have reasonably sought out treatment from such a facility. Thus, all the elements of 38 U.S.C.A. § 1725, for payment of the expenses incurred by the Veteran at Natchitoches Regional Medical Center on April 5, 2007, have been met and the Veteran's claim is granted. See 38 U.S.C.A. § 1725; 38 C.F.R. § 17.1002. ORDER Payment or reimbursement for unauthorized medical expenses provided at Natchitoches Regional Medical Center on April 5, 2007, is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs