Citation Nr: 1301401 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 10-36 341A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Murfreesboro, Tennessee THE ISSUE Entitlement to payment of private medical expenses incurred at Centennial Medical Center-Ashland City, on December 11, 2009. ATTORNEY FOR THE BOARD Terrence T. Griffin, Counsel INTRODUCTION The Veteran had active service from October 1976 to February 1977. This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 2010 decision of the Department of Veterans Affairs (VA) Medical Center, Fee Services Section, in Murfreesboro, Tennessee. The January 2010 decision denied the claim seeking payment of private medical care the Veteran obtained, on December 11, 2009, at Centennial Medical Center-Ashland City and he appealed this decision. FINDINGS OF FACT 1. The Veteran is financially liable to Centennial Medical Center-Ashland City for private emergency medical treatment provided on December 11, 2009 for a nonservice-connected condition, when he was enrolled with the VA health care system. 2. Based on the Veteran's symptoms, on December 11, 2009, a prudent layperson would reasonably expect a delay in seeking immediate medical attention to have been hazardous to life or health. 3. Based on his December 11, 2009 symptoms, no VA or other Federal facility/provider was feasibly available and a prudent layperson would not consider an attempt to use VA facilities beforehand reasonable. CONCLUSION OF LAW The criteria for payment of private medical expenses incurred at Centennial Medical Center-Ashland City, on December 11, 2009, are met. 38 U.S.C.A. §§ 1703, 1725, 1728 (West 2002 & Supp. 2012); 38 C.F.R. §§ 17.52, 17.53, 17.55, 17.120, 17.1000-17.1008 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. Payment for or reimbursement of emergency services for nonservice-connected conditions in non-VA facilities may be authorized under the Veteran's Millennium Health Care and Benefits Act. See 38 U.S.C.A. § 1727; 38 C.F.R. § 17.1002. A Veteran is eligible for such payment or reimbursement if: (a) The emergency services were provided in a hospital emergency department or a 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 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); (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 a 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 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 of the 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.A. § 1728 for the emergency treatment provided (38 U.S.C.A. § 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). 38 C.F.R. § 17.1002. A December 2009 private emergency record notes that the Veteran presented with complaints of dizziness, nausea, weakness, decreased ability to stand and walk, and impaired balance. Following various tests, he was prescribed medication for dizziness and the diagnosed conditions included chest pain. In a March 2010 statement, J. G., the Director of the Cheatham County EMS, states that based on his symptoms, the Veteran likely would have been treated to rule out a cerebrovascular accident or CVA and transported to the nearest emergency medical facility by ambulance, if the EMS provider were called. In an April 2010 statement, the Veteran reports that, on December 11, 2009, he was "weak, dizzy and unable to help [himself] from the sudden attack" and experiencing an inability to open his eyes or focus, which caused him to believe he was going to die. These symptoms and the advice of his sister are the stated reasons that the Veteran sought non-VA emergency medical care. The Veteran is financially liable to Centennial Medical Center-Ashland City for the private emergency medical care provided on December 11, 2009, and at the time was enrolled with the VA health care system. The Veteran is not shown to have any other insurance to cover this expense, and he is not eligible for reimbursement under 38 U.S.C.A. § 1728 for the emergency treatment provided. The Veteran provides a competent and credible account of the symptomatology he experienced on December 11, 2009, including fearing for his life. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). His account and all other evidence of record sufficiently support a finding that a prudent layperson would have reasonably expected a delay in seeking immediate medical care to be a hazardous to life or health. The evidence of record, including the March 2010 statement of Mr. J.G., strongly suggests that the Veteran's December 11, 2009, symptoms would likely have resulted in his transport to the nearest emergency medical facility via ambulance. The closest VA medical facility to the Veteran's home is approximately 22 miles (i.e., the VA Medical Center in Nashville, Tennessee), while Centennial Medical Center-Ashland City is only one-half mile away. The evidence of record indicates that, on December 11, 2009, a VA or other Federal facility/provider was not feasibly available and attempting to use VA facilities beforehand would not have been reasonable to a prudent layperson. Payment for private medical expenses incurred at Centennial Medical Center-Ashland City on December 11, 2009, is warranted. ORDER Payment of private medical expenses incurred at Centennial Medical Center-Ashland City on December 11, 2009, is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs