Citation Nr: 1325962 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 10-44 155A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Murfreesboro, Tennessee THE ISSUE Entitlement to reimbursement or payment of private medical care expenses incurred on January 30, 2010. (The issues of entitlement to service connection for kidney cancer, bilateral hand tremors, and right great toe injury, and whether new and material evidence has been received to reopen claims of service connection for hearing loss, tinnitus, and hypertension, are addressed in a separate decision.) ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION The Veteran served on active duty from June 1967 to June 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 decision by Department of Veterans Affairs (VA) Medical Center in Murfreesboro, Tennessee. FINDINGS OF FACT 1. The Veteran received emergency medical care at Maury Regional Hospital on January 30, 2010. 2. VA facilities were not feasibly available for emergent care at the time the Veteran sought treatment. 3. The Veteran had a reasonable belief that he was experiencing a condition 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 January 30, 2010, 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 on January 30, 2010, which constitutes a complete grant of the Veteran's claim. Therefore, no discussion of VA's duty to notify or assist is necessary. On January 30, 2010, the Veteran, who had undergone a left laparoscopic partial nephrectomy for renal carcinoma on January 8, 2010, sought emergency treatment at Maury Regional Hospital for bright red blood in his urine, incontinence of urine, and severe penile pain. He underwent a CT of the abdomen and pelvis and was transferred to a VA facility a few hours later. The Veteran requests reimbursement for the cost of the private medical treatment. The Veteran is service-connected for posttraumatic stress disorder, diabetes mellitus, and peripheral neuropathy of the upper and lower extremities. Service connection is not currently in effect for kidney cancer, although the Veteran is pursuing a claim for that benefit. 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. The remaining questions as to the whether the Veteran meets the criteria for reimbursement or payment of private medical care expenses are whether the Veteran was in need of emergency treatment and whether a VA facility was not feasibly available. The evidence establishes that the Maury Regional Hospital ER meets the requisite facility requirements, that the Veteran is responsible for the hospital charges, and that he has provided evidence showing that he has no other health insurance. The Veteran asserts that on January 30, 2010, he was in severe pain and passing blood in his urine, that there was an ice storm, and that the nearest VA facility was more than 70 miles away in Nashville. He asserts that he feared he would bleed to death if he did not go to the nearest emergency room and also feared for the safety of his wife if she attempted to drive him to Nashville in the storm. The Board finds that, based on these factors, a VA facility was not feasibly available. The Veteran's symptoms of severe pain and passing blood in his urine, three weeks after a partial nephrectomy for renal carcinoma, support a finding that the Veteran reasonably believed that lack of immediate care would be life-threatening. For this reason, the Veteran does meet the criterion of having a medical 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. ORDER Entitlement to reimbursement or payment of private medical care expenses incurred on January 30, 2010, is granted. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs