Citation Nr: 1310833 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 10-44 182A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Omaha, Nebraska THE ISSUE Entitlement to payment of private medical expenses incurred at the Nebraska Medical Center on July 19, 2009. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Evan M. Deichert, Associate Counsel INTRODUCTION The Veteran had active service from August 1997 to May 2000. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2009 decision of the Department of Veterans Affairs (VA) Medical Center in Omaha, Nebraska, that denied the claim seeking payment of private medical care the Veteran received on July 19, 2009 at the Nebraska Medical Center. The Veteran testified at a hearing at the Lincoln, Nebraska Regional Office (RO) in June 2011; a transcript of that hearing has been associated with the claims folder. FINDINGS OF FACT 1. The Veteran is financially liable to the Nebraska Medical Center for private emergency medical treatment provided on July 19, 2009, for a nonservice-connected condition, when she was enrolled with the VA health care system. 2. Based on the Veteran's symptoms, on July 19, 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 her July 19, 2009 symptoms, no VA or other Federal facility or 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 Nebraska Medical Center on July 19, 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 I. Duties to Notify and to Assist 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. II. Medical Reimbursement Claim 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. The Veteran sought treatment at the emergency room of the Nebraska Medical Center on Sunday July 19, 2009. Records from this treatment show that she was 11 weeks pregnant at that time, and had complained of a vaginal discharge for one month. She was diagnosed as suffering from bacterial vaginosis, and she was instructed to return to the emergency room if she experienced any vaginal bleeding or abdominal pain. In letters and her testimony, the Veteran provided more detail regarding this emergency room visit. In a July 2010 letter, she stated that she had been assigned an obstetrician at the Nebraska Medical Center by the VA, as the VA Medical Center did not have one on staff. She stated that on the day of her treatment, she called the nurse's line to report her symptoms; she was told that her symptoms were consistent with a bacterial infection known to cause pre-term labor and miscarriage and that she should be seen immediately. In a November 2010 letter, the Veteran stated that at the time of her July 2009 treatment, she had been suffering from a vaginal discharge for around a month. She states that on the day she sought treatment, she noticed that she was suffering from pain and discomfort along with the discharge. She spoke to her obstetrician's office; they informed her that because of the risk of infection affecting her pregnancy, she should report immediately to the emergency room. She stated that given her history of a miscarriage and a premature birth, she listened to the nurse and went to the emergency room. She added that she had been denied treatment by the VA for past pregnancies, and that she was told to seek outside obstetric care. In her June 2011 hearing, she reiterated her earlier accounts, stating that she was told to seek outside care by the VA because they did not have specialists available. She also stated that she was instructed by the nurses to come in immediately. In support of her claim, the Veteran submitted a letter from her private obstetrician, R.O., MD. In that November 2009 letter, Dr. R.O. stated that "it was medically necessary for [the Veteran] to be seen and evaluated" on the day of her treatment on account of her pregnancy. He stated that she was advised by the triage nurses to be seen in the emergency room. The Veteran is financially liable to the Nebraska Medical Center for the private emergency care provided to her on July 19, 2009; she was enrolled with the VA health care system at that time. The Veteran does not have any other insurance to cover this expense, and she is not eligible for reimbursement under 38 U.S.C.A. § 1728 for the emergency treatment provided. In her letters and testimony, the Veteran has provided a competent and credible account of the symptoms she was suffering on the day of her treatment, including a complaint of pain and discomfort the day she sought treatment. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Her report of calling the nurse's line and being told to come in right away without making an appointment is also credible, especially given the November 2009 letter from her obstetrician. The VA decisions that denied payment for the Veteran's treatment all found that the Veteran's situation was not emergent, and that she could have been seen by VA providers. The Board disagrees. There is no showing that the earlier decisions considered the competent and credible testimony of the Veteran regarding her treatment, or that VA considered the statement of Dr. R.O., her treating physician, that it was "medically necessary" for her to be evaluated immediately. Further, given that the VA Medical Center had previously sent the Veteran to private facilities for her obstetric care, it would not have been reasonable for her to go to a VA facility first in this situation. Thus, the evidence of record indicates that, on July 19, 2009, a VA or other Federal facility or provider was not feasibly available, and attempting to use VA facilities beforehand would not have been reasonable to a prudent lay person. Payment for private medical expenses incurred that the Nebraska Medical Center on July 19, 2009 is warranted. ORDER Payment of private medical expenses incurred at the Nebraska Medical Center on July 19, 2009 is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs