Citation Nr: 1323111 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 10-01 557 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Gainesville, Florida THE ISSUE Entitlement to reimbursement or payment of private medical care expenses incurred from April 21, 2009 to April 22, 2009. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. M. Schaefer, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1998 to November 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 decision by Department of Veterans Affairs (VA) Medical Center in Gainesville, Florida. In his November 2009 substantive appeal (VA Form 9), the Veteran requested a personal hearing before a Veterans Law Judge. The hearing was scheduled for May 2011, but the Veteran declined to attend. As no further communication from the Veteran with regard to a hearing has been received, the Board considers his request for a hearing to be withdrawn. See 38 C.F.R. §§ 20.702(d), (e); 20.704(d), (e) (2012). FINDINGS OF FACT 1. The Veteran received emergency medical care at Halifax Medical Center from April 21, 2009 to April 22, 2009. 2. VA facilities were not feasibly available for emergent care at the time the Veteran sought treatment. 3. Resolving all reasonable doubt in favor of the Veteran, the Veteran had a reasonable belief that he was experiencing for which lack of immediate care would be hazardous to his health. CONCLUSION OF LAW The criteria for reimbursement or payment of private medical care expenses incurred on April 21, 2009 to April 22, 2009 have been met. 38 U.S.C.A. §§ 1725, 1728 (West 2002); 38 C.F.R. §§ 17.120, 17.1001, 17.1002 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board grants entitlement to reimbursement for the medical expenses the Veteran incurred in April 2009, which constitutes a complete grant of the Veteran's claim. Therefore, no discussion of VA's duty to notify or assist is necessary. On April 21, 2009, the Veteran sought emergency treatment at Halifax Medical Center (hereinafter Halifax) for heart palpitations. He was discharged from the Halifax Emergency Room (ER) a few hours later on April 22, 2009. The Veteran requests reimbursement for the cost of this treatment. The Veteran is service-connected for major depressive disorder, right shoulder sprain, hypothyroidism, and eczema of the bilateral hands. Service connection for a cardiovascular disability was denied in a July 2010 rating decision, the Veteran did not appeal that decision. Under the law, VA may provide payment or reimbursement for the reasonable value of emergency treatment furnished to a veteran for non-service-connected conditions in a non-VA facility under the following circumstances: (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. 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). 38 C.F.R. § 17.1002 (2012); see also Veterans Millennium Health Care and Benefits Act, Pub. L, No. 106-177, 113 Stat. 1553 (1999); 38 U.S.C.A. § 1725. Initially, the Board observes that the only questions with regard to the above criteria are whether the Veteran was in need of emergency treatment, and whether VA facilities were feasibly available. The evidence establishes that the Halifax ER meets the requisite facility requirements, that the Veteran is responsible for the hospital charges, and that he has no other health insurance. The Veteran asserts that he has a history of heart palpitations and had been experiencing them for approximately two weeks when they suddenly became much worse, causing him to fear he was experiencing a cardiac event. It was approximately 10 pm, and the nearest ER was at Halifax. The Board notes that the closest VA facility offering emergency care at that hour was the Gainesville VA Medical Center, located over an hour away. Therefore, VA facilities were not feasibly available. The Board notes that the medical evidence from before April 2009, including a June 2007 VA examination, documents the Veteran's heart palpitations. The Veteran was in the process of transferring his VA care to the Daytona Beach VA facility for treatment when he was seen for lab work and an EKG in March 2009. The EKG was normal, but the Veteran reports that he was told that if the palpitations became worse, he should go to the Halifax ER. While this direction is not noted in the March 2009 VA treatment record, the Veteran is competent to speak to matters of which he has first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran contends that in the afternoon and evening of April 21, 2009, his heart palpitations suddenly became worse, becoming extremely painful, which was not "normal" in his years of experience of having them. Therefore, he believed he was having a cardiac event warranting emergency care. While the Halifax ER records do not show any abnormalities were found upon clinical examination and testing, the question is whether it was reasonable that the Veteran reasonably believed that lack of immediate care for his symptoms would be life-threatening. The Veteran is competent to give evidence on his symptoms, including having increased heart palpitations and chest pain. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Further, the Veteran's long experience with heart palpitations suggests that he would recognize a sudden change in severity of his symptoms. Accordingly, the Board finds that it is at least as likely as not the Veteran's symptoms were of such severity that it was reasonable for him to perceive them as life-threatening. Thus, the Board determines that the Veteran has met the criterion of having a condition requiring emergency care under 38 C.F.R. § 1725. In light of the above, the Board finds that all criteria for reimbursement of medical expenses incurred for emergency care of a nonservice-connected disability under 38 U.S.C.A. § 1725 have been met. Accordingly, the Veteran's claim is granted. ORDER Entitlement to reimbursement or payment of private medical care expenses incurred from April 21, 2009 to April 22, 2009 is granted. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs