Citation Nr: 1321392	
Decision Date: 07/03/13    Archive Date: 07/12/13

DOCKET NO.  09-19 726	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Ann Arbor, Michigan


THE ISSUE

Entitlement to payment or reimbursement of unauthorized medical expenses incurred during a hospitalization at W.A. Foote Memorial Hospital on October 14, 2007.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Paul S. Rubin, Counsel



INTRODUCTION

The Veteran had active service in the United States Marine Corps from August 1971 to December 1979.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 decision by the Department of Veterans Affairs (VA) Medical Center (VAMC) in Ann Arbor, Michigan.

A review of the Virtual VA paperless claims processing system reveals an additional June 2013 written brief presentation submitted by the Veteran's representative.  The Board has considered this additional evidence.  


FINDINGS OF FACT

1.  On October 14, 2007, the Veteran received private care at W.A. Foote Memorial Hospital for s nonservice-connected disability (drug withdrawal symptoms and generalized arthralgia to the hip).

2.  The totality of the evidence reveals that the Veteran's private care on October 14, 2007, was not rendered in a "medical emergency" 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.  

3.  The totality of the evidence reveals that during the Veteran's private care on October 14, 2007, VA facilities were feasibly available and an attempt to use them beforehand would have been considered reasonable by a prudent layperson.


CONCLUSION OF LAW

The criteria are not met for payment or reimbursement of unauthorized medical expenses incurred during a hospitalization at W.A. Foote Memorial Hospital on October 14, 2007.  38 U.S.C.A. §§ 1703, 1725, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 17.53, 17.120(c), 17.130, 17.1002(b), (c) (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Duties to Notify and Assist

Review of the medical expenses folder, more commonly known as the duplicate Consolidated Health Record (CHR) file or Medical Administration Service (MAS) folder, reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq.  See also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The duty to notify was accomplished by way of a VCAA letter from the VAMC to the Veteran dated in April 2008.  This letter effectively satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing him about the information and evidence not of record that was necessary to substantiate his medical expense reimbursement claim; (2) informing him about the information and evidence the VA would seek to provide; and (3) informing him about the information and evidence he was expected to provide.  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  Specifically, this letter advised the Veteran that in order to substantiate his unauthorized medical expenses claim, he must submit or identify evidence that demonstrated that his private care was rendered in "emergent" circumstances and that VA facilities were not available.  

Moreover, the Veteran's personal statements demonstrate he has actual knowledge of what evidence is required to establish payment or reimbursement of unauthorized medical expenses in the instant case.  See Mlechick v. Mansfield, 503 F.3d 1340, 1345 (Fed. Cir. 2007) (any notice error not prejudicial when claimant has actual knowledge of the evidence needed to substantiate claim).  Specifically, the Veteran has stated that VA facilities were not feasibly available on the morning of October 14, 2007, as the VA Medical Center (VAMC) in Ann Arbor, Michigan, was over 40 miles away.  He also noted that a nearby VA clinic in Jackson, Michigan, was closed because it was a Sunday.  In addition, he has asserted that a medical emergency existed because his heart rate was very rapid and he experienced blurred vision at the time.  He has stated that the private hospital doctors advised him he was lucky he was brought to the hospital quickly, as the situation was clearly a medical emergency.  See February 2008 Notice of Disagreement (NOD); May 2008 VA Form 9.  Therefore, the Veteran has demonstrated that he is clearly aware of the criteria necessary to substantiate his claim.  Accordingly, the Board is satisfied the Veteran was afforded a meaningful opportunity to participate in the adjudication of his claim.  Overton v. Nicholson, 20 Vet. App. 427, 435 (2006).  

The Board concludes that there is no prejudicial error in the content of VCAA notice.  See Shinseki v. Sanders, 556 U.S. 396 (2009) (An error in VCAA notice should not be presumed prejudicial and the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis).  

The Board also finds that the duty to assist has been met, as well, as all pertinent private hospitalization records and medical bills were submitted or obtained.  In addition, VA secured January 2008 and March 2008 VA clinician opinions to addressing the critical issue of whether the Veteran's treatment was rendered in a medical emergency.  The Veteran has also submitted medical evidence and personal statements.  There is no indication from the records or the Veteran and his representative that there is any outstanding evidence pertinent to the issue being decided herein.  Thus, the Board is satisfied that the duty to assist has been met.  38 U.S.C.A. § 5103A.


Background Facts and Contentions

The Veteran was hospitalized on the morning of Sunday, October 14, 2007, at approximately 9:10 a.m. at a private facility, W. A. Foote Memorial Hospital, after experiencing generalized arthralgias (to the hip) and drug withdrawal symptoms.  He arrived by private vehicle, and he was able to walk in.  The symptoms had been present for close to two days after he ran out of his pain medication, which was identified as OxyContin.  He was discharged at 10:20 a.m., for a total stay of under two hours.  See October 14, 2007 private emergency records from W. A. Foote Memorial Hospital.

The private hospitalization on October 14, 2007, was for a nonservice-connected condition.  The Veteran was subsequently granted service connection for bipolar disorder with depression effective from February 23, 2009, which was several years after the private hospitalization.  See January 2010 rating decision (on Virtual VA).  There is no indication that he was hospitalized for his subsequently service-connected bipolar disorder on the morning of Sunday, October 14, 2007.   The total bills for private medical services were $1,136.27 and $232.00.  See private bills.   

VA has denied payment or reimbursement of unauthorized medical expenses incurred during his hospitalization at W. A. Foote Memorial Hospital on October 14, 2007, on the basis that his hospitalization was not for "emergency treatment." VA has also denied payment or reimbursement of unauthorized medical expenses for the October 14, 2007, hospitalization on the basis that VA facilities were "feasibly available" at the time of the unauthorized emergency treatment.  See January 2008 and March 2008 administrative decisions of the VAMC in Ann Arbor, Michigan; April 2008 Statement of the Case (SOC).   

The Veteran, however, requests reimbursement of these unauthorized medical expenses.  He contends that private treatment on the morning of October 14, 2007, was rendered in a "medical emergency" 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.  He has also asserted that the VAMC in Ann Arbor, Michigan, was not feasibly available at the time of the private treatment due to geographical distance (40 miles) and the severity of his medical condition.  He has indicated that the nearby VA clinic was closed.  See February 2008 NOD; May 2008 VA Form 9.  VA did not authorize payment or reimbursement for his private treatment on October 14, 2007.  




Governing Laws and Regulations 

Initially, under 38 U.S.C.A. § 1703, when VA facilities or other government facilities are not capable of furnishing economical hospital care or medical services because of geographic inaccessibility or are not capable of furnishing care or services required, VA may authorize or contract with non-VA facilities for care.  38 U.S.C.A. § 1703(a) (West 2002 & Supp. 2012); 38 C.F.R. § 17.52(a) (2012).  However, the Veteran has never contended, and the evidence does not demonstrate, that he received prior VA authorization for his private hospitalization.  Therefore, application of 38 U.S.C.A. § 1703(a) for reimbursement of "authorized" private hospitalization is unwarranted.  In short, the issue of prior authorization is not applicable here. 

Regardless, when the Veteran receives treatment at a non-VA facility without prior authorization, such as the case here, there are two statutes that allow for claimants to be paid or reimbursed for the medical expenses incurred for that treatment - specifically, 38 U.S.C.A. § 1728 and 38 U.S.C.A. § 1725.  Application of either statute is generally dependent on whether the Veteran has an adjudicated service-connected disability.   

Because the treatment in question was rendered for nonservice-connected disabilities (generalized arthralgias (to the hip) and drug withdrawal symptoms), the Veteran is not eligible for payment or reimbursement of "unauthorized" medical expenses incurred at a non-VA facility under 38 U.S.C.A. § 1728(a).  Although Veteran was subsequently service-connected for bipolar disorder with depression effective as of February 23, 2009, which was several years after the private hospitalization.  In addition, although he developed a permanent and total disability from his service-connected bipolar disorder with depression, this VA rating was only effective February 23, 2009, several years after the private hospitalization.  There is also no probative indication that he was hospitalized for his service-connected bipolar disorder on the morning of Sunday, October 14, 2007.  There is also no evidence or allegation he is participating in a vocational rehabilitation program under 38 U.S.C. Chapter 31, which in certain instances might have qualified him under 38 U.S.C.A. § 1728.  See also 38 C.F.R. § 17.120(a). 

Consequently, the only possible route to entitlement to unreimbursed medical expenses in this case stems from 38 U.S.C.A. § 1725, for treatment of a nonservice-connected disorder, pursuant to the Veterans Millennium Health Care and Benefits Act.  See also 38 C.F.R. §§ 17.1000-17.1008 (2012).  

Effective October 10, 2008, the provisions of 38 U.S.C.A. § 1725 and § 1728 were amended.  See Veterans' Mental Health and Other Care Improvements Act of 2008, Pub. L. No. 110-387, § 402, 122 Stat. 4110 (2008).  This bill made various changes to Veteran's mental health care and also addresses other health care related matters.  The changes are liberalizing in that they make reimbursement for medical expenses mandatory instead of discretionary, as well as expand the definition of "emergency treatment" beyond the point of stabilization.  In addition, the changes apply the more liberal prudent layperson standard for determining whether an actual medical emergency existed under either 38 U.S.C.A. § 1725 and § 1728.  The Board will apply the more liberal amended law, as there is possibility of prejudice to the Veteran in doing so.  

The amended law expands the meaning of "emergency treatment" under section 1725(f)(1) by stating:

(1) The term "emergency treatment" means medical care or services furnished, in the judgment of the Secretary--

(A) when Department or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable;

(B) when such care or services are rendered in a medical emergency of such nature that a prudent layperson reasonably expects that delay in seeking immediate medical attention would be hazardous to life or health; and

(C) until--

(i) such time as the Veteran can be transferred safely to a Department facility or other Federal facility and such facility is capable of accepting such transfer; or

(ii) such time as a Department facility or other Federal facility accepts such transfer if--

(I) at the time the Veteran could have been transferred safely to a Department facility or other Federal facility, no Department facility or other Federal facility agreed to accept such transfer; and

(II) the non-Department facility in which such medical care or services was furnished made and documented reasonable attempts to transfer the Veteran to a Department facility or other Federal facility.

See 38 U.S.C.A. § 1725 (West 2002 & Supp. 2012). 

Effective January 20, 2012, VA regulations implementing 38 U.S.C.A. § 1725 and § 1728 were amended to conform to the statutory changes.  See 76 Fed. Reg. 79067 - 79072 (December 21, 2011).  The amendments affected the following Title 38 regulations:  38 C.F.R. §§ 17.120, 17.121, 17.1001, 17.1002, 17.1005, 17.1006, and 17.1008.  

Pursuant to 38 C.F.R. § 17.1002(a)-(h) (2012), to be eligible for payment or reimbursement for emergency services for nonservice-connected conditions in non-VA facilities under the statute and the implementing regulations, the Veteran must satisfy all of the following conditions: 

(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 that VA has an agreement with to furnish health care services for Veterans 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 the nearest available appropriate level of care was at a non-VA medical center);

(d) 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;

(e) The Veteran is financially liable to the provider of emergency treatment for that treatment;

(f) 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);

(g) 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, the Veteran's liability to the provider; and

(h) The Veteran is not eligible for reimbursement under 38 U.S.C. 1728 for the emergency treatment provided (38 U.S.C. 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). 

See 38 C.F.R. § 17.1002(a)-(h) (2012).  

All of the above elements must be satisfied for a claimant to qualify for payment or reimbursement.  Zimick v. West, 11 Vet. App. 45, 49 (1998); Malone v. Gober, 10 Vet. App. 539, 544 (1997).  That is, these criteria under 38 U.S.C.A. § 1725 and 38 C.F.R. § 17.1002(a)-(h) are conjunctive, not disjunctive; thus, all criteria must be met.  See Melson v. Derwinski, 1 Vet. App. 334 (June 1991) [use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met]; compare Johnson v. Brown, 7 Vet. App. 95 (1994) [only one disjunctive "or" requirement must be met in order for an increased rating to be assigned].

The Court also held that both medical and lay evidence may be considered in a prudent layperson evaluation for determining what constitutes a "medical emergency."  That is, VA should weigh "the totality of the circumstances" to determine whether a prudent layperson would consider the situation emergent.  Swinney v. Shinseki, 23 Vet. App. 257, 264-266 (2009).

With regard to the issue of feasible availability, the admission of any patient to a private or public hospital at VA expense will only be authorized if a VA medical center or other federal facility to which the patient would otherwise be eligible for admission is not feasibly available.  38 C.F.R. § 17.53 (2012).  A VA facility may be considered as not feasibly available when the urgency of the applicant's medical condition, the relative distance of the travel involved, or the nature of the treatment required makes it necessary or economically advisable to use public or private facilities.  Id.  When non-VA care is authorized in such circumstances, the authorization will be continued after admission only for the period of time required to stabilize or improve the patient's condition to the extent that further care is no longer required to satisfy the purpose for which it was initiated.  Id.

With regard to the issue of feasible availability, although pertaining to treatment of service-connected disabilities, 38 C.F.R. § 17.120(c) also provides further guidance.  Under 38 C.F.R. § 17.120(c), payment or reimbursement of the expenses of emergency treatment, not previously authorized, can be made when VA or other Federal facilities that VA has an agreement with to furnish health care services for Veterans 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.

With regard to the issue of feasible availability, no reimbursement or payment of services not previously authorized will be made when such treatment was procured through private sources in preference to available Government facilities.  38 C.F.R. § 17.130 (2012).

In determining the claim at issue, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


Analysis

The Veteran has already met many of the substantive and administrative criteria for payment or reimbursement of nonservice-connected medical care listed under 38 C.F.R. § 17.1002(a)-(h) (2012).  That is, it has been already determined by the VAMC that the claim for reimbursement was timely filed by the Veteran; the Veteran is financially liable to the private provider of treatment; the Veteran is without health insurance; 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; the Veteran is not eligible for reimbursement under 38 U.S.C. 1728 for the emergency treatment provided; the services in question were provided in a hospital emergency department; and finally, stabilization is not at issue because the Veteran was only hospitalized for under two hours and left on his own accord after he was considered stabilized.  See 38 C.F.R. §§ 17.1002(a)-(h), 17.1005 (2012).  

Thus, the only remaining issues in the present case are the following:  (1) whether the October 14, 2007, hospitalization at W.A. Foote Memorial Hospital was 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; and (2) whether a VA or other Federal facility/provider was not feasibly available on Sunday October 14, 2007, and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson.  See 38 U.S.C.A. § 1725(f)(1); 38 C.F.R. §§ 17.53, 17.1002(b), (c).  Simply stated, the Veteran prevails if the Board concludes a "medical emergency" existed and a VA facility was not feasibly available on the morning of October 14, 2007, under applicable VA law and regulations.

Upon review of the evidence, the Board finds that the requirements for payment or reimbursement for unauthorized emergency medical treatment on October 14, 2007, under the amended version of 38 U.S.C.A. § 1725 are not met.  In this regard, the totality of the circumstances demonstrates that the Veteran's October 14, 2007, hospitalization was not "emergency treatment" under the amended version of 38 U.S.C.A. § 1725(f)(1), due to the lack of a medical emergency and VA facilities being feasibly available. 

The Veteran has asserted that a medical emergency existed on the morning of October 14, 2007, because his heart rate was very rapid and he experienced blurred vision at the time.  He claims that the private hospital doctors advised him that he was lucky he was brought to the hospital quickly, as the situation was clearly a medical emergency.  See February 2008 Notice of Disagreement (NOD); May 2008 VA Form 9.  

An Emergency Department (ER) Chart revealed that the Veteran was hospitalized on the morning of Sunday, October 14, 2007, at approximately 9:10 a.m. at a private facility, W.A. Foote Memorial Hospital, after experiencing generalized arthralgias (to the hip) and drug withdrawal symptoms.  He arrived by private vehicle, rather than ambulance, and he was able to walk into the hospital.  Notably, the symptoms had been present for close to two days after he ran out of his pain medication, which was identified as OxyContin.  Moreover, his symptoms were not discussed in the context of being "sudden" or "acute."  He was discharged at 10:20 a.m., for a total stay of only under two hours.  His pulse, temperature, respiration, and blood pressure were all taken when he arrived. The Veteran has asserted that his heart rate or pulse was rapid, yet this was not noted by the private medical personnel.  The only abnormality noted was a "moderate" elevation of blood pressure (hypertension).  

An ER nursing assessment noted the Veteran's complaints of hip pain, nausea, and vomiting after he ran out of OxyContin one and a half days earlier.  He was noted to be anxious and restless with a feeling that bugs were crawling on him.  Drug withdrawal symptoms were assessed.  The Veteran denied having feelings of suicide and stated that he "just wants something to take the edge off."  This is not supportive of a medical emergency.  

An ER Clinician History of Present Illness also revealed that the Veteran denied having trouble breathing and denied chest pain.  No urgency, frequency, or dysuria was found.  Rather, he was assessed as being "in no acute distress."  The clinician stated that the Veteran "does not appear acutely ill or toxic."  A circulatory examination also found a regular rate with no significant murmurs, rubs, or gallops, and his musculoskeletal, neurologic, pulmonary, psychiatric, and ear, nose, and throat examinations were all normal.  A normal psychiatric evaluation was further observed.  The diagnosis was chronic pain and osteoarthritis, and he was given a steroid injection for his arthritic pain.  These facts provide strong evidence against the claim, as they support a situation that was non-emergent and directly contradict some of the Veteran's assertions.  

An ER Disposition Report revealed that the Veteran was discharged at 10:20 a.m., for a total stay of only under two hours.  He left with his spouse and walked out with a steady gait.  He was provided a prescription for Percocet. 

The Board has also considered January 2008 and March 2008 VA clinical reviews by VA personnel.  They advised that the claim should be denied because it was not shown that a medical emergency existed that such delay would have been hazardous to life or health.  It was noted that the Veteran presented to the private ER with symptoms of hip pain and nausea and vomiting "since [he] ran out of OxyContin."  The January 2008 VA clinician noted that the Veteran initially called the VA emergency room asking for drugs, but was told to come in first.  The Veteran responded by hanging the phone up.  He then went to the private emergency room in order to get drugs (presumably the pain medication).  This information and accompanying clinician opinion also provides strong evidence against the Veteran's assertion that a "medical emergency" existed under 38 U.S.C.A. § 1725(f)(1).  

The Board must determine, as a question of fact, both the weight and credibility of the evidence.  Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value.  The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence.  See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991).  The Veteran's credibility affects the weight to be given to his testimony and lay statements, and it is the Board's responsibility to determine the appropriate weight.  See Washington, 19 Vet. App. at 368.

Credibility can be generally evaluated by considering interest, bias, or inconsistent statements, the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony."  Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  Personal interest may affect the credibility of the evidence.  Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Caluza, 7 Vet. App. at 506 (citing State v. Asbury, 415 S.E.2d 891, 895 (W. Va. 1992). 	

Although the Veteran is competent to describe his symptoms on the morning of October 14, 2007, the Board finds the medical evidence of record on the issue of whether a "medical emergency" existed at that time to be more credible and probative than the Veteran's lay assertions.  The Veteran is also competent to state that the private hospital doctors advised him he was lucky he was brought to the hospital quickly due to an emergency situation.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay testimony regarding what a medical professional tells a lay person is specifically listed as one of the examples given as competent lay testimony).  

Regardless, the medical evidence of record does not support the Veteran's lay assertions and instead provides affirmative evidence against them.  The medical evidence of record indicates that the Veteran went to the private ER because VA would not provide him with pain killers for his arthralgia.  Notably, he hung up on a VA representative.  The observation of unbiased, skilled medical professionals is more probative as to the severity of the Veteran's condition on the morning of October 14, 2007.  No medical personnel ever described his condition as "severe."  His symptoms simply did not rise to that level.  The Veteran was experiencing symptoms of drug withdrawal and did not require emergency hospitalization.  Significantly, he had been experiencing these symptoms for approximately two days and was able to come to the hospital on his own accord.   Moreover, examinations did not reveal a rapid heart rate or pulse, and it he was not found to be in any acute distress by a medical professional who evaluated him.  There is no persuasive medical or lay evidence of record that a "medical emergency" existed on the morning of October 14, 2007.  

Per the Swinney case, the Board has reviewed and discussed both the medical and lay evidence in a prudent layperson evaluation for determining what constitutes a "medical emergency."  In short, the totality of the evidence establishes that a medical emergency did not exist that morning.  It is not shown 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. § 17.1002(b).  Indeed, the Veteran himself waited approximately two days before seeking medical attention and called the VAMC for medication rather than seeking emergency treatment first, which suggests that he did not believe his health was in serious jeopardy.

Because the facts do not meet the "medical emergency" requirement for emergency treatment under 38 U.S.C.A. § 1725(f)(1), reimbursement is prohibited.  The Board need not address other criteria such as the "feasible availability" of VA facilities, as the failure to meet any of the criteria precludes payment or reimbursement of unauthorized medical expenses.  Zimick, 11 Vet. App. at 49; Malone, 10 Vet. App. at 544.   

In any event, under VA regulation, 38 C.F.R. § 17.53, a VA facility may be considered as not feasibly available when the urgency of the applicant's medical condition, the relative distance of the travel involved, or the nature of the treatment required makes it necessary or economically advisable to use public or private facilities.  As to the relative distance of the travel involved, the Board, and its reviewing Courts, may take judicial notice of facts, as compared to evidence, which are not subject to interpretation.  See, e.g., Yeoman v. West, 140 F.3d 1443 (Fed. Cir. 1998); Dedicatoria v. Brown, 8 Vet. App. 441 (1995) (judicial notice of laws).   In this respect, the Board takes judicial notice that the nearest VA emergency room from the Veteran's home was the VAMC in Ann Arbor, Michigan, which is approximately 41 miles away and a 56 minute drive.  The private W. A. Foote Memorial Hospital where he was treated was approximately 16.6 miles away and a 28 minute drive.   The Veteran's medical condition was not severe enough that he could not have visited the VAMC in Ann Arbor.  The Veteran appears to have simply hung up on the VA when they would not provide him with drug medication without an examination.  On the morning of October 14, 2007, the Veteran's treatment was procured through private sources in preference to available Government facilities.  See 38 C.F.R. § 17.130.  No reimbursement or payment of services not previously authorized will be made in such circumstances.  An attempt to use VA facilities beforehand would have been considered reasonable by a prudent layperson.  See 38 C.F.R. §§ 17.120(c), 17.1002(c).  

Therefore, based on the foregoing, the Board concludes that the Veteran's private care on the morning of October 14, 2007, was not rendered in a medical emergency of such nature that a prudent layperson reasonably expects that delay in seeking immediate medical attention would be hazardous to life or health.  In addition, the VAMC in Ann Arbor was "feasibly available" on the morning of October 14, 2007.  See 38 U.S.C.A. § 1725(f)(1); 38 C.F.R. §§ 17.53, 17.1002(b), (c).   

Accordingly, the Board finds that the preponderance of the evidence is against payment or reimbursement of unauthorized medical expenses incurred during a hospitalization at W.A. Foote Memorial Hospital on October 14, 2007.  38 U.S.C.A. §§ 1725, 5107 (West 2002 & Supp. 2012).   The claim is denied. 


ORDER

Payment or reimbursement of unauthorized medical expenses incurred during a hospitalization at W.A. Foote Memorial Hospital on October 14, 2007, is denied.   



____________________________________________
JESSICA J. WILLS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs