Citation Nr: 1326679 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 11-04 703 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Mountain Home, Tennessee THE ISSUE Entitlement to payment or reimbursement for the cost of medical treatment provided on January 25, 2010, at the Wellmont Hawkins County Memorial Hospital Emergency Department (ED). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran apparently served on active duty from August 1960 to October 1964. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 decision rendered by the Department of Veterans Affairs (VA) James H. Quillen Medical Center in Mountain Home, Tennessee. The veteran requested a videoconference hearing before the Board. The requested hearing was conducted by the undersigned Veterans Law Judge in April 2011. FINDINGS OF FACT 1. The Veteran was awarded a total schedular evaluation for dementia due to head trauma in 1980. 2. The testimony of the Veteran and his spouse that the Veteran attempted to be seen in the VA outpatient clinic but that the clinic directed him to the nearby private emergency room is credible. 3. The fact that VA outpatient clinic staff directed the Veteran to the nearest emergency department for treatment did not constitute VA authorization for payment or reimbursement of such treatment. 4. Affording the Veteran the benefit of the doubt, the treatment obtained on January 25, 2010, was for a medical emergency related to his service-connected disability of such nature that a prudent lay person would reasonably expect that a delay in seeking immediate medical attention would be hazardous to life or health. CONCLUSION OF LAW The criteria for payment of or reimbursement of unauthorized private medical expenses incurred on January 25, 2010, for treatment at the Wellmont Hawkins County Memorial Hospital ED have been met. 38 U.S.C.A. §§ 1725(f)(1), 1728, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 17.120 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran seeks reimbursement or payment for treatment at the Wellmont Hawkins County Memorial Hospital ED on January 25, 2010. The Veteran is service-connected for dementia due to head trauma. That disability was initially rated as 70 percent disabling; a total schedular rating has been in effect since November 1980. The Veteran has also been granted service connection for a facial laceration scar and for malunion of the lower jaw, each evaluated as noncompensable. The Veteran's testimony and statements and the ED record disclose that the Veteran sought medical evaluation on January 25, 2010 because he was disoriented, weak, had numbness in one arm, and had great difficulty walking. The Veteran's dizziness did not pass after he rested following his initial attempt to walk, so he asked his wife to take him to the VA clinic. The Veteran's wife drove him to the VA outpatient clinic in Rogersville, Tennessee, the VA facility closest to the Veteran's home. When they arrived, the Veteran stayed in the car, because he was too dizzy to walk in without assistance. His wife went in, with his VA card. The Veteran's wife testified that, instead of helping her bring the Veteran in, VA staff members told her to take the Veteran to the nearby private Emergency Department (ED) at Wellmont Hospital. At the Wellmont ED, the Veteran reported dizziness, vertigo, slight numbness in the left arm, and being unable to walk straight because the room was spinning, according to the initial nursing assessment. The Veteran reported that the dizziness began at about 3 a.m. that morning. The provider conducted a CT scan of the brain. The Veteran was given Antivert (meclizine) and an intramuscular corticosteroid (Solumedrol) while in the ED. The ED provider noted that the Veteran had not taken hydroxyzine, which the Veteran took nightly for sleep, for the past week, because he had run out of his supply of the medication. For purposes of information only, the Board notes that hydroxyzine is marketed under such trade names as Vistiril and Atarax. The Veteran's hydroxyzine was provided through VA. The Veteran testified that he had forgotten to order the refill timely. The ED provided a prescription for hydroxyzine so that the Veteran could take that medication until the refill ordered through VA became available. Analysis Section 1728(a), Title 38, United States Code, provides that VA will pay or reimburse a veteran for emergency medical treatment rendered to the Veteran at a private facility for an adjudicated service-connected disability, or for any disability of a Veteran who has a total disability permanent in nature from a service-connected disability. There is no dispute as to whether the treatment rendered on January 25, 2010, was for the Veteran's service-connected disability. The virtual (electronic) records available to the Board for purposes of this appeal establish that the Veteran has a total schedular rating for a service-connected disability, dementia due to head trauma, and the record establishes that this rating has been in effect since 1980. Thus, the Veteran meets the statutory criteria for eligibility for payment or reimbursement of emergency medical treatment, if his treatment constituted an emergency. The version of 38 U.S.C.A. § 1728 which governs this claim defines emergency treatment as medical care or services furnished when VA or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable and 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. All three of these statutory requirements must be met before payment may be authorized. Hayes v. Brown, 6 Vet. App. 66, 68 (1993). The Veteran's statements and testimony that he attempted to seek care at the VA outpatient clinic is credible. The Veteran's attempt to use the clinic establishes that an appropriate VA facility was not available. In a June 2010 letter, the Veteran stated that the VA outpatient clinic staff directed his wife to take him to the Wellmont Hospital ED. These statements are, in essence, an argument that the Veteran's care at Wellmont Hospital should be considered authorized rather than unauthorized. The provider who conducted an eligibility determination in October 2010 considered whether the Veteran's care was authorized. The provider reviewed the Veteran's clinical records in the Computerized Patient Record System (CPRS) system to determine whether there was official VA authorization for the Wellmont Hospital treatment. However, the provider found no notation that the Veteran sought treatment at VA on January 25, 2010, or that he was authorized on that date to seek private emergency case. A recommendation from VA staff to seek emergency care, in the absence of written authorization from VA staff designated to authorize non-VA care, is considered prudent medical advice and not a guarantee of VA payment. Therefore, the Veteran's use of the Wellmont Hospital ED cannot be considered pre-authorized, and the provider's conclusion that the Veteran's use of the private facility was not pre-authorized is correct. The provider who conducted the eligibility determination concluded that the clinical notes from the Wellmont Hospital ED "do not document an emergency situation." The eligibility determination documents note that refill of a prescription is not an emergency. However, the governing statute and regulations direct that a determination as to whether circumstances constitute an emergency is considered from the point of view of "a prudent layperson," not from the point of view of a knowledgeable health care provider. The test is whether a prudent lay person would reasonably expect that his condition was such that delay in seeking treatment would be hazardous to his health or life. See Swinney v. Shinseki, 23 Vet. App. 257, 264 (2009). The Veteran testified that he was so dizzy on January 25, 2010, that he could not walk unassisted. He testified that he had some numbness in one arm. The Veteran's testimony makes it clear that he is ordinarily able to walk unassisted, and was able to walk unassisted the day before he sought emergency care. A prudent layperson in this situation, with a relatively sudden onset of severe dizziness overnight, could expect that the condition was of such severity that delay would be hazardous to his health or life. The Board notes that the Veteran did not delay in seeking treatment for the condition. The Veteran was able to walk the day before he sought medical evaluation. The ED records reflect that the Veteran arrived at the ED at 9:30 a.m. As noted above, the Veteran's testimony that he attempted to seek medical evaluation at the VA outpatient clinic before going to the private facility is credible. The Veteran's time of arrival at the private ED establishes that the Veteran reported for care at the VA outpatient clinic almost as soon as it opened in the morning. The Veteran and his wife clearly thought there was a need for haste, even though they did not call 911 and request emergency transport. The fact that the VA clinic staff advised the Veteran to seek nearby private emergency medical treatment, rather than advising the Veteran to go the nearest VAMC with emergency services (approximately 60 miles from Rogersville, in Mountain Home, Tennessee) is consistent with the finding that a reasonably prudent layperson would consider the circumstances an emergency. After affording the Veteran the benefit of the doubt, and after considering the totality of the circumstances, the Board finds that the Veteran sought medical treatment under circumstances which a reasonably prudent lay person would consider an emergency, and the criteria for reimbursement under 38 U.S.C.A. § 1728 are met. As this decision is entirely favorable to the Veteran, no further discussion of VA's duty to notify or assist the Veteran is required. ORDER The appeal for payment or reimbursement for the cost of medical treatment provided on January 25, 2010, at Wellmont Hawkins County Memorial Hospital, is granted. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs