Citation Nr: 1311345	
Decision Date: 04/05/13    Archive Date: 04/19/13	

DOCKET NO.  10-49 285	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA), North Florida/South Georgia Veterans Health System


THE ISSUE

Entitlement to payment of or reimbursement for medical care expenses incurred at the Flagler Hospital in St. Augustine, Florida, on December 16, 2009.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Robert E. O'Brien, Counsel




INTRODUCTION

Active service from March 1966 to March 1968 has been reported.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 determination by the VA North Florida/South Georgia Veterans Health System.



FINDINGS OF FACT

1.  Service connection is not in effect for any disability.

2.  The Veteran received emergent care at the Flagler Hospital in St. Augustine, Florida, on December 16, 2009, for hypertension that was revealed on a blood pressure check at that facility.

3.  The unauthorized medical expenses incurred coincident with treatment and evaluation for the elevated blood pressure readings in December 2009 were of such a nature that a prudent lay person would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health, and a VA facility offering emergent care was not feasibly available.


CONCLUSION OF LAW

The criteria for payment or reimbursement for the costs of private medical expenses incurred on December 16, 2009, at the Flagler Hospital in St. Augustine, Florida, have been reasonably met.  38 U.S.C.A. § 1725 (West 2002); 38 C.F.R. §§ 3.102,  17.1000-1008 (2012).




REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claim Assistance Act of 2000 (VCAA)

The VCAA enhanced VA's duties to notify and assist claimants in substantiating claims for VA benefits.  The VCAA is codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.326.  Because this decision constitutes a complete grant of the benefit sought on appeal, no further discussion of the notice and assistance duties is necessary.

Factual Background and Analysis

After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record.  38 U.S.C.A. § 7104(a).  When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against a claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Under  38 C.F.R. § 17.1002, payment or reimbursement for emergency services may be made only if all of the following conditions are met:

(a) The emergency services were provided in a hospital emergency department or 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 lay person would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health (this standard will be met if there were an emergent medical condition manifesting itself by acute symptoms of sufficient severity, including severe pain) that a prudent lay person 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 part or organ); 

(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 lay person (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 continuing medical emergency of such a nature that the Veteran could not have been safely discharged or transferred to the VA or other Federal facility (a 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 38 U.S.C.A. 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 care plan contract but payment is barred because of a failure by the Veteran or the provider to comply with the provisions of that health care plan, e.g., failure to submit appeal or medical records within specified time limits, or failure to exhaust appeals of the denial of payment);

(h) and 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 (2012).

In the instant case, the record reflects that the Veteran arrived at the Cancer Center of the Flagler Hospital in St. Augustine, Florida, on December 16, 2009, for radiation treatment.  He expressed a complaint of hot flashes and requested that his blood pressure be checked.  A reading of 210/100 was taken.

A January 2010 communication from the clinical supervisor at the Cancer Center indicated that the Veteran was asked if he had taken any blood pressure medications.  He informed the individual he did not have any medications for blood pressure since he had never been treated or diagnosed for hypertension.  He was advised to call his primary care provider and seek evaluation in the emergency room "ASAP as he remained not feeling well..."  In addition to the reading of 202/100, another reading was recorded on examination of 207/96.

In a statement in support of claim dated in July 2010, the Veteran indicated that after what he said was the initial reading of 207/106 was taken by a volunteer in the lobby, he was advised to go directly to the emergency room.  He then went to his radiation appointment and asked his regular to take his blood pressure.  He indicated the reading there was 210/100.  He states he was advised by her to go directly to the emergency room and he was walked there by the individual herself.  He has submitted a statement dated in January 2010 from a clinical supervisor at the health care facility that essentially agrees with his narrative of the events as they occurred on December 16, 2009.  He states that while in the emergency room, he was given a CAT scan, electrocardial testing, and the like.

Given the circumstances, the Board finds that a prudent lay person, such as the Veteran, would have expected that a delay in seeking immediate medical attention would have been hazardous to life and health.  A reasonable person could assume that experiencing such abnormally high blood pressure readings were symptoms of a potentially life threatening situation.  Moreover, given the severity of the high readings, the record shows he was told by personnel at the private hospital to seek evaluation in the emergency room "ASAP."  Thus, the Veteran's decision to seek immediate medical care as suggested by medically trained professionals while in the private medical facility, rather than traveling a significant distance to either the Gainesville VA Medical Center or the Orlando VA Medical Center, was reasonable.

The Board notes that in a communication dated in September 2010, the Veteran indicated that he was enrolled in the VA health care system and had received treatment within a two-year period preceding the emergency care.  He also stated he had no other coverage under health plan contract that would pay, in whole, or in part, for his treatment.  There is nothing in the record to show that such an assertion is not true.  The record does contain reports of VA outpatient visits, indicating the Veteran is indeed enrolled in the VA health care system.

In view of the foregoing, the Board finds that any delay in the Veteran's treatment or evaluation "would have been hazardous to life or health" and any attempt by him to direct his care would not have been "reasonable, sound, wise, or practical."  38 U.S.C.A. § 1728; 38 C.F.R. § 17.120.

In sum, the Veteran's claim approximates each of the criteria under 38 U.S.C.A. § 1728 and 38 C.F.R. § 17.120.  The claim should therefore be approved.  See Melson v. Derwinski, 1 Vet. App. 334 (1991).


ORDER

Entitlement to payment or reimbursement of unauthorized medical expenses incurred on December 16, 2009, at the Flagler Hospital in St. Augustine, Florida, is granted, subject to the laws and regulations governing the award of monetary benefits.

	       
                 ____________________________________________
	KELLI KORDICH
	Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs