Citation Nr: 1319474 Decision Date: 06/17/13 Archive Date: 06/27/13 DOCKET NO. 09-45 847 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Gainesville, Florida THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred at Baptist Medical Center South on January 31, 2009. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran had active service from March 1968 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from administrative decisions of the Department of Veterans Affairs Medical Center (VAMC) in Gainesville, Florida. The Veteran was scheduled for a Board hearing at the RO in August 2010. However, in an August 2010 statement received prior to the hearing, he indicated that he no longer desired a hearing. Therefore, his request for a Board hearing is considered withdrawn. 38 C.F.R. § 20.704(e) (2012). FINDING OF FACT There is an approximate balance of positive and negative evidence as to whether the Veteran was experiencing a medical emergency on January 31, 2009, when he reported to the nearest emergency room at Baptist Medical Center South. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to payment or reimbursement of unauthorized medical expenses incurred at Baptist Medical Center South on January 31, 2009 have been met. 38 U.S.C.A. §§ 1728, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 17.120 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In claims involving payment or reimbursement by VA for medical expenses incurred as a result of treatment at a private facility, it must first be determined whether the services for which payment is sought were authorized by VA. 38 U.S.C.A. § 1703(a) (West 2002). In this case, the Veteran's treatment at the non-VA facility was not authorized in advance, and he does not so contend. As treatment was not previously authorized, it must then be determined whether the Veteran was otherwise entitled to payment or reimbursement under either 38 U.S.C.A. § 1728 or § 1725. The Board notes that he has been in receipt of a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities since October 5, 2001. Thus, 38 U.S.C.A. § 1728 is applicable. VA may reimburse veterans for unauthorized medical expenses incurred in non-VA facilities where: (a) Care or services not previously authorized were rendered to a veteran in need of such care or services: (1) for an adjudicated service-connected disability; (2) for nonservice-connected disabilities associated with and held to be aggravating an adjudicated service-connected disability; (3) for any disability of a veteran who has a total disability permanent in nature resulting from a service-connected disability; (4) for any illness, injury, or dental condition in the case of a veteran who is participating in a rehabilitation program under 38 U.S.C. Chapter 31 and who is medically determined to be in need of hospital care or medical services for any of the reasons enumerated in § 17.48(j); and (b) Care and services not previously authorized were rendered in a medical emergency of such nature that delay would have been hazardous to life or health; and (c) VA or other federal facilities were not feasibly available, and an attempt to use them beforehand or obtain prior VA authorization for the services required would not have been reasonable, sound, wise, or practicable, or treatment had been or would have been refused. 38 U.S.C.A. § 1728(a) (West 2002); 38 C.F.R. § 17.120 (2012). The Board notes that 38 U.S.C.A. § 1728 was revised in 2008. The amendments made the definition of emergency treatment in § 1725(f)(1) applicable to § 1728, including by replacing the standard for determining the existence of a medical emergency in § 17.120(b) with the prudent layperson standard. The effective date of those amendments was January 20, 2012. 76 Fed. Reg. 79067 (Dec. 21, 2011). Of note, the amendment provides that the prudent layperson standard is met by 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. 38 C.F.R. § 17.120(b) (2012). In this case, the Veteran sought emergency medical care for a nonservice-connected disability at Baptist Medical Center South on January 31, 2009. He was treated and discharged later that day. The physician's emergency department notes show that the Veteran complained of chest tightness and upper abdominal pain for two to three weeks, worse after eating, and nausea. The Veteran denied vomiting or diarrhea or shortness of breath. He reported a history of abdominal, epigastric, and lower chest pain with a knot in the throat for several weeks that was getting worse. He described the pain as severe, crampy, and sharp. He also reported a history of gastroesophageal reflux disease (GERD). The physician noted cardiovascular symptoms of chest pain and that the Veteran had a stress test 18 months ago that was negative and showed no coronary artery disease. Examination showed the Veteran to be in mild distress. Evaluation of the heart showed regular rate and rhythm and no chest wall tenderness. There was moderate epigastric tenderness. Differential diagnoses included abdominal pain, bowel obstruction, cholecystitis, GERD, pancreatitis, peptic ulcer disease, and doubtful myocardial infarction. After further testing, the physician diagnosed the Veteran with abdominal pain and mild pancreatitis and noted that his condition at discharge had improved. The physician advised the Veteran to follow-up with his VA primary care physician in four days but to return to the emergency department if symptoms worsened. A February 2, 2009, VA treatment note shows that the Veteran developed severe nausea and a lump in the back of the throat on the night of January 30, 2009 and went to Baptist Medical Center South the next morning. It was noted that the latter symptom had previously resolved on GERD medication but had recurred. The VAMC denied claims for payment of the Veteran's medical expenses from three private providers. The reason for the denial was that review of the emergency department notes indicated that the treatment provided was non-emergent. A June 2009 review of the claims by a VA physician found that there was no new information to qualify the Veteran's condition as an emergency, noting that his symptoms had been present for about two and a half weeks, which was ample time for him to seek VA treatment, and that he has a long history of GERD and should have recognized his symptoms as being related to GERD. In a July 2009 statement, the Veteran indicated that when he woke up on January 31, 2009, he thought he was having heart problems. He stated that he had chest pain and tightness, difficulty taking a deep breath, nausea, sweating, weakness, shakes, and dizziness. He reported a history of heart problems found by VA and that doctors told him to go to the closest emergency department if he developed chest pain and difficulty breathing. He stated that, as January 31, 2009, was a Saturday, the VA clinic was closed so he drove to the nearest emergency room, which was at Baptist Medical Center South, adding that he thought he was going to pass out while driving. He stated that he followed-up at the VA clinic first thing Monday morning and the doctor told him that he had done the right thing by going to the closest emergency room. On an October 2009 VA Form 9, the Veteran expressed his belief that he really thought that he was having a heart attack. Initially, the Board observes that this case turns on whether a medical emergency of such nature that delay would have been hazardous to life or health existed at the time the Veteran sought private medical care on January 31, 2009. Although it has been determined that a VA or other Federal facility was feasibly available, that finding is premised on there being no medical emergency on that date and that the Veteran could have sought VA medical care earlier during the week. The Board observes that the Veteran was being treated at the Jacksonville VA Outpatient Clinic, which is open from Monday through Friday, and the Lake City VAMC, the nearest VA hospital open on weekends, is over one hour away from the Veteran's home. Thus, practically, it would not seem prudent to drive such a great distance in what was perceived as a medical emergency. Should the Board find that there was a medical emergency on January 31, 2009, a Saturday, the Board would also find that a VA or other Federal facility was not feasibly available on that day. The Board finds that there is an approximate balance of positive and negative evidence as to whether the Veteran was experiencing a medical emergency on January 31, 2009, when he reported to the nearest emergency room at Baptist Medical Center South. Although he was experiencing symptoms for two to three weeks prior to the emergency room admission, the record indicates that the symptoms increased in severity over the weekend. Similarly, although the record indicates that he was experiencing GERD symptoms, the record also indicates that he was experiencing cardiovascular symptoms. Likewise, although a VA physician stated that the Veteran should have recognized his symptoms as being related to GERD, the Veteran has expressed his belief that he was having a heart attack. Lastly, although a VA physician determined that the Veteran was not experiencing a medical emergency, the private treating physician at the emergency room advised the Veteran to return to the emergency room if symptoms worsened, indicating that his condition may have been a medical emergency at the time he reported. Thus, resolving reasonable doubt in the Veteran's favor, the Board finds that he was experiencing a medical emergency on January 31, 2009, when he reported to the nearest emergency room at Baptist Medical Center South. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board also finds that a VA or other Federal facility was not feasibly available on that day because the nearest clinic was closed and the next nearest facility was over an hour drive away. Resolving reasonable doubt in favor of the Veteran, the appeal is granted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to payment or reimbursement of unauthorized medical expenses incurred at Baptist Medical Center South on January 31, 2009 is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs