Citation Nr: 1301779 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 10-36 312A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Tampa, Florida THE ISSUE Entitlement to payment of private medical expenses incurred at the Regional Medical Center-Bayonet Point, on December 17, 2009. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Terrence T. Griffin, Counsel INTRODUCTION The Veteran had active service from November 1966 to August 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2010 decision of the Department of Veterans Affairs (VA) Medical Center, Fee Services Section, in Tampa, Florida. The March 2010 decision denied the claim seeking payment of private medical care the Veteran obtained on December 17, 2009, at the Regional Medical Center-Bayonet Point. The issue of entitlement to a separate compensable disability evaluation for diabetic neuropathy, secondary to service-connected diabetes mellitus, type II, has been raised by the medical evidence of record and the March 2012 statement of the Veteran's representative, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran is financially liable to Regional Medical Center-Bayonet Point for private emergency medical treatment provided on December 17, 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 17, 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 17, 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 the Regional Medical Center-Bayonet Point on December 17, 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 medical record, documents the Veteran's presentation for emergency medical care because right leg pain symptoms had increased on this date, impairing his ability to stand and walk. Another treatment record generated at the time details the Veteran's subjective report of chronic right lower back pain radiating down his leg and current pain symptoms being very severe (i.e., 10 out of 10). The Veteran's past medical history of chronic back pain, posttraumatic stress disorder, herbicide exposure, cholesterol, diabetes mellitus, type II, and prostate cancer are also noted. The December 2009 private after-care instructions indicate diabetic neuropathy and a right leg Baker's cyst were diagnosed and instruct the Veteran to call his VA physician "as soon as possible" to arrange follow-up care within 24 hours. In an April 2010 statement, the Veteran reports that, on December 17, 2009, he was "having excruciating pain in [his] legs and could not walk" and that he sought treatment from the nearest emergency medical facility because, given "the intensity of the pain, [he] thought there was something terribly wrong." The Veteran also indicates that a call to the nearest VA facility in Tampa, Florida, was answered with a recorded message, stating "if [the situation was] an emergency, go to the nearest emergency room." The RO obtained the opinion of a VA physician in July 2010, which details the nature of the Veteran's December 17, 2009 treatment and indicates the diagnosed conditions were a right Baker's cyst and chronic low back pain. The physician reports that there was no record confirming the Veteran called the Tampa VA hospital on December 17, 2009, and no evidence he did call. The VA physician opines that the Veteran's condition was not of such a severity to warrant non-VA emergency treatment and that, at the time of the occurrence, a VA facility was approximately 4 miles away from his home (i.e., the VA out-patient clinic in New Port Richey, Florida). The Veteran is financially liable to the Regional Medical Center-Bayonet Point for private emergency medical care provided on December 17, 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 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 symptomalogy he experienced on December 17, 2009, including a sudden increase in severity and concerns of health related danger. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). He also provides a competent and credible account of attempting to contact the VA medical facility in Tampa, Florida, and being instructed to proceed to the nearest emergency medical facility, if the situation was an emergency. The July 2010 VA examiner provides a medical opinion that the situation was not an emergency; but the proper standard focuses on the opinion/assessment of a prudent layperson, rending this aspect of the opinion of no probative value. The Veteran's account and all other evidence of record, including then recent diagnoses of coronary artery disease and prostate cancer, 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 July 2010 VA physician states that a VA facility was approximately 4 miles away from the Veteran's home on December 17, 2009, but this facility does not provide emergency medical care. The closest VA emergency medical facility to the Veteran's home is approximately 36 miles away (i.e., the VA Medical Center in Tampa, Florida), while the Regional Medical Center-Bayonet Point is only approximately 2 miles away. The evidence of record indicates that, on December 17, 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 Regional Medical Center-Bayonet Point on December 17, 2009, is warranted. ORDER Payment of private medical expenses incurred at Regional Medical Center-Bayonet Point on December 17, 2009, is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs