Citation Nr: 1311877	
Decision Date: 04/10/13    Archive Date: 04/19/13

DOCKET NO.  10-49 264	)	DATE
	)
	)


On appeal from the
Department of Veterans Affairs Medical Center in Salem, Virginia




THE ISSUE

Entitlement to payment or reimbursement of unauthorized medical expenses incurred at a private medical facility on March 19, 2010.




ATTORNEY FOR THE BOARD

N. L. Northcutt, Counsel 








INTRODUCTION

The Veteran, who is the appellant, served on active duty from December 1972 to July 1974.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2010 decision of the Department of Veterans Affairs (VA) Medical Center (VAMC) in Salem, Virginia.


FINDINGS OF FACT

1.  Prior to March 2010, the Veteran had been receiving ongoing VA treatment and she had no form of health insurance.

2.  The Veteran's symptoms were unrelated to a service-connected disability or an accident or work-related injury.

3.  The Veteran received emergent care at a private facility on March 19, 2010, for an acute episode of severe radiating lower back pain.

4.  The Veteran is financially liable for the related medical expenses.

5.  The unauthorized medical expenses were rendered 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 health, and a VA facility offering emergent care was not feasibly available.







CONCLUSION OF LAW

The criteria for payment or reimbursement of unauthorized medical expenses for emergent care for a nonservice-connected disability at a non-VA facility on March 19, 2010, have been met.  38 U.S.C.A. § 1725 (West 2002); 38 C.F.R. § 17.1002 (2012).

VA's Duties to Notify and to Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.

As the claim is resolved in the Veteran's favor, the Board need not address VCAA compliance.


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Facts

On March 19, 2010, the Veteran sought emergent care at Wesley Long Hospital, which is located approximately 1.5 miles from her home, for the acute onset of severe lower back pain.  She was ambulatory and unaccompanied when she arrived by private vehicle. 

At the time of the emergent care, the Veteran complained of severe, sharp, throbbing low back pain radiating to the left lower extremity that acutely worsened over three days, which she attributed to recently playing with her grandchildren.  




The Veteran characterized the pain as 9 on a scale of 1 to 10.  The pain was aggravated by sitting and standing.  The Veteran stated that it was too uncomfortable to drive to the Durham VA. 

X-rays of the lumbar spine revealed severe degenerative disc disease at L3-L4 and mild degenerative disc disease at L1-L2 and L2-L3.  

The Veteran was diagnosed with sciatica, degenerative disc disease, and muscle spasm.  She was prescribed pain medication and muscle relaxants and advised to seek follow-up care through VA to include a magnetic resonance imaging (MRI) study.  She was discharged within approximately two hours of her admission. 

The Veteran states that due to the severity of her back pain, she did not believe that she could travel to the VAMC in Durham, North Carolina, which is approximately 54 miles from her home.  Moreover, as the Veteran had misunderstood a VA employee's advisory of the emergency room hours, she believed that the emergency room would be closed when she arrived in Durham.

In subsequent statements, the Veteran clarified that while she had been experiencing back pain for several days prior to the time of her emergent care, as reported in her treatment records, the sudden onset of extreme lower back and left leg pain on March 19, 2010, caused her to seek treatment.

The Veteran does not have a service-connected disability.

The Veteran reports receiving regular VA treatment and that she has no health insurance coverage, and she reported VA as her health insurance provider when completing the hospital admission forms. 

The record contains three separate bills for medical expenses for treatment of a nonservice-connected disability in a non-VA facility on March 19, 2010.



Legal Criteria

Reimbursement or payment was denied under the Veterans Millennium Health Care and Benefits Act, Public Law 106- 177, referred to as the "Millennium Bill Act." The Millennium Bill Act provides payment or reimbursement for emergency services for non-service connected conditions in non-VA facilities.  

The regulations regarding its implementation that were in effect when the Veteran's claim was denied appear at 38 C.F.R. §§ 17.1000-1008, which states that payment or reimbursement under 38 U.S.C. 1725 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 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 the 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. 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 (2010).

The provisions of 38 C.F.R. § 17.1002 have been recently revised, effective May 21, 2012.  Subsection (d), which limits the reimbursement of medical expenses to those incurred prior to a veteran's stabilization, has been removed from the amended regulation.  As the Veteran's reimbursement claim may be granted under the regulations in effect at the time his claim was filed, no discussion of the merits of her claim pursuant to the revised regulations is necessary.

Analysis

The Veteran asserts that she is entitled to payment for expenses incurred at a private emergent care facility, because the services were rendered in what she perceived to be a medical emergency and treatment at a VA facility was not feasible.

The Veteran sought treatment at a private emergent care facility for the sudden onset of severe radiating lower back pain, after experiencing ongoing back pain for several days, which meets the criteria of 38 C.F.R. § 17.1002(a). 

The Veteran is competent to describe the onset and severity of her pain, as symptoms of pain are capable of lay observation.  See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (a lay person is competent to report symptoms based on personal observation when no special knowledge or training is required).  

Furthermore, the Veteran's statements are consistent with the admission forms for emergent care, which characterizing her back pain as having been present for three days with the severity of her pain as a 9 of 10 at the time of her admission.  



Based on the consistency of her statements of experiencing an acute exacerbation of severe back pain on March 19, 2010, her statements are credible.

Accordingly, as acute, severe pain is specifically referenced as a condition that a prudent layperson who possesses average knowledge of health and medicine could reasonably expect to require immediate medical attention, the criteria of 38 C.F.R. § 17.1002(b) have been met.

The nearest VA emergent care facility was located approximately 54 miles from the Veteran's home.  As the Veteran was experiencing acute, severe, throbbing low back pain and discomfort with sitting and standing as shown in the record, a drive for about an hour to the nearest VA facility versus a less than a five minute drive to cover 1.5 miles to the non-VA facility would not have been considered a reasonable course of action by a prudent layperson.  The Veteran has stated that she believed that such a commute was not feasible or safe given the severity of her pain, which the Board determines is a reasonable and prudent determination, thereby satisfying the criteria of 38 C.F.R. § 17.1002(c).

The provisions of 38 C.F.R. § 17.1002(d) are inapplicable, as the Veteran's unauthorized medical expenses were not incurred as treatment for a continued medical emergency beyond the date of stabilization.  Rather, the Veteran's emergent care was completed in approximately two hours.

Additionally, the Veteran reports receiving on-going VA treatment, and reports that she has no form of private health insurance coverage and she is responsible for the total debt of her emergent care.  Thus, the requirements of 38 C.F.R. § 17.1002(e), (f), and (g) are met.

There is no evidence that the Veteran has been awarded service connection for disability, including the lumbar spine disability necessitating her medical treatment on March 19, 2010.   Therefore, the requirements of 38 C.F.R. § 17.1002(h) are met.


The Veteran's disability of the lumbar spine was unrelated to any work-injury, as she was unemployed at the time of treatment as noted on the admission forms for emergent care.  Therefore, the requirements of 38 C.F.R. § 17.1002(i) are met.

As the Veteran has met all of the requirements of 38 C.F.R. § 17.1002, the payment or reimbursement for medical expenses related to emergent care at a private medical facility on March 19, 2010 is warranted.  


ORDER

Payment or reimbursement of unauthorized medical expenses for emergent care incurred at a private medical facility on March 19, 2010, is granted.



____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs