Citation Nr: 1328660	
Decision Date: 09/09/13    Archive Date: 09/17/13

DOCKET NO.  10-22 335A	)	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 as a result of medical treatment by Shands Starke Regional Medical Center on September 16, 2009.


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

T. M. Gillett, Counsel





INTRODUCTION

The Veteran served on active duty from July 1963 to October 1966.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an administrative decision of the Department of Veterans Affairs Medical Center (VAMC) in Gainesville, Florida. In June 2011, the Veteran testified at a hearing before the Board, seated at the VA Regional Office (RO) in St. Petersburg, Florida. A transcript has been procured and is of record. 


FINDING OF FACT

The Veteran was experiencing a medical emergency on September 16, 2009, when he reported to the nearest emergency room at Shands Starke Regional Medical Center.


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 Shands Starke Regional Medical Center on September 16, 2009 have been met. 
38 U.S.C.A. §§ 1725, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 17.1002 (2010); 3.102, 17.120, 17.120, 17.121, 17.1000-1001 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. VA's Duties to Notify & Assist

VA has statutory duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In light of the favorable action taken by the Board, any defects with respect to the duties of notice or assistance are non-prejudicial.

II. Analysis

The Veteran is seeking entitlement to payment of or reimbursement for unauthorized medical expenses for emergency room treatment received for neck pain with reported dizziness on September 16, 2009, at the Shands Starke Regional Medical Center in Starke, Florida. The VAMC in Gainesville, Florida, denied the claim having found that the Veteran's neck pain was not a medical emergency. 

Reimbursement for or payment of unauthorized medical expenses may be made pursuant to 38 U.S.C.A. § 1728 (West 2002 & Supp. 2012). Generally, in order to be entitled to payment of or reimbursement for medical expenses incurred at a non-VA facility, a claimant must satisfy a number of conditions, including that the care and services rendered were either: (1) for an adjudicated service-connected disability, or (2) for a nonservice-connected disability associated with and held to be aggravating an adjudicated service-connected disability, or (3) for any disability of a Veteran who has a total disability, permanent in nature, resulting from a service-connected disability, or (4) for any injury, illness, or dental condition in the case of a Veteran who is participating in a rehabilitation program and who is medically determined to be in need of hospital care or medical services for reasons set forth in 38 C.F.R. § 17.47(i) (2012). The Veteran, however, is not service connected for any disability. Therefore, he is not entitled to payment or reimbursement by VA under 38 U.S.C.A. § 1728; 38 C.F.R. § 17.120. 

In this case, reimbursement for unauthorized medical expenses may be made pursuant to 38 U.S.C.A. § 1725 and 38 C.F.R. §§ 17.1002 (2010); 17.1000-1001 (2012). Section 1725 was enacted as part of the Veterans Millennium Health Care and Benefits Act, Public Law 106-177, the provisions of which became effective on May 29, 2000. Of note, the provisions of 38 C.F.R. § 17.1002 have been recently revised, effective May 21, 2012. Subsection (d), which limits the reimbursement of medical expenses to those incurred prior to a veteran's stabilization, has been removed from the amended regulation. As the Veteran's reimbursement claim may be granted under the regulations in effect at the time his claim was filed, no discussion of the merits of his claim pursuant to the revised regulations is necessary. To be eligible for payment or reimbursement under the applicable regulations, the Veteran has to 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 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;

(i) The Veteran is not eligible for reimbursement under 38 U.S.C.A. § 1728 for the emergency treatment provided.  See 38 C.F.R. § 17.1002 (2010).  

In this case, the evidence of record indicates that the Veteran received emergency treatment at the Shands Starke Regional Medical Center on September 16, 2009, for complaints of neck pain and dizziness. The private examiner diagnosed a muscle spasm of the neck and treated it via an injection of painkillers. 

The Veteran contends that his condition was emergent in nature. The Veteran indicated that he attempted to drive the 40 miles to the VAMC in Gainesville, but did not believe that he would have been able make it there due to his dizziness and neck spasms which caused limitation of motion of the neck so as to make turning his head to the left impossible. The Veteran stated that, due to these difficulties, he believed, at the time, that the only sensible option was to go to the emergency room at the Shands Starke Regional Medical Center which was five miles away. The Board finds the assertions made by the Veteran to be competent and credible.

The Board finds that the evidence of record supports a finding that the Veteran is entitled to payment of or reimbursement for the expenses incurred at the Shands Starke Regional Medical Center on September 16, 2009. 

The evidence of record shows that the Veteran was enrolled in the VA Health Care system at the time the subject medical care was rendered. Specifically, the record indicates that the Veteran had received an influenza vaccine at the Gainesville VAMC on October 15, 2008. The Veteran has credibly asserted that he experienced symptoms of dizziness and a limitation of motion of the neck which made turning his head in that direction impossible. Considering this combination of symptoms, the Board finds that this is credible evidence indicating that the treatment received by the Veteran at the Shands Starke Regional Medical Center was 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. Considering the distance the Veteran would have had to drive to the VAMC in Gainesville while experiencing these symptoms, the Board finds that 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. 

The Veteran has submitted a statement from the Shands Starke Regional Medical Center's accounts receivable department, indicating that Veteran did not have any coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the emergency treatment. The Board also finds these assertions to be competent and credible. The Veteran also has indicated that he solely is financially responsible for the entirety of the bill. As explained above, the Veteran is not eligible for reimbursement under 38 U.S.C.A. § 1728 for the emergency treatment provided.  

Based on the foregoing, the Board resolves all reasonable doubt in finding that the Veteran met all of the criteria required for payment of or reimbursement for medical expenses incurred at the Shands Starke Regional Medical Center on September 16, 2009. 


ORDER

Entitlement to payment or reimbursement of unauthorized medical expenses incurred as a result of medical treatment by the Shands Starke Regional Medical Center on September 16, 2009 is granted. 



____________________________________________
KELLI A. KORDICH
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs