Citation Nr: 1330427	
Decision Date: 09/23/13    Archive Date: 09/30/13

DOCKET NO.  10-42 185	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Canandaigua, New York



THE ISSUE

Entitlement to payment or reimbursement for unauthorized medical services in connection with emergency room (ER) treatment at Olean General Hospital (OGH) on October 22, 2009. 



REPRESENTATION

Appellant represented by:	New York State Division of Veterans' Affairs



WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

T. Mainelli, Counsel



INTRODUCTION

The Veteran served on active duty from August 1976 to August 1979.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 decision by the VA Medical Center (VAMC) in Canandaigua, New York.  In August 2011, the Veteran appeared and testified before the undersigned at a Travel Board hearing held at the Buffalo, New York Regional Office.  The hearing transcript is associated with the claims folder. 

A review of the Virtual VA electronic records storage system and Veterans Benefits Management System (VBMS) reveal no additional documents which are not currently associated with the medical claims folder.

In September 2013, the Veteran's representative provided the Board a copy of a VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative) which had not been associated with the medical claims folder.  The Board appreciates the representative's expeditious response to the Board's request for a copy of this document.


FINDINGS OF FACT

1.  At approximately 4:30 p.m. on October 22, 2009, the Veteran experienced the sudden onset of hematuria in the context of a recent abdominal trauma and no prior history of hematuria. 

2.  At 4:30 p.m. on October 22, 2009, the Olean VA Community Based Outpatient Clinic (CBOC) was closed, and the nearest VA Medical Center (VAMC) in Buffalo, New York was located approximately 75 miles away from the Veteran's location. 

3.  At 6:41 p.m. on October 22, 2009, the Veteran presented to the OGH ER where it was determined that medical services were required, including computed tomography (CT) scans of the abdomen and pelvis, urinalysis and blood work.

4.  At 10:31 p.m. on October 22, 2009, the OGH ER contacted the Buffalo VA to determine a referring physician; the Veteran was discharged for home at 11:30 pm with a diagnosis of hematuria.

5.  The Veteran's attending VA physician has provided opinion that the Veteran's emergency visitation to the OGH emergency room on October 22, 2009 was "appropriate and prudent given the circumstances."

6.  In light of the sudden onset of hematuria in the context of a prior abdominal injury, no prior history of hematuria and an approximate 75 mile drive to the nearest available VA facility, the Veteran acted as a reasonably prudent person would have in similar circumstances by seeking immediate medical attention at the nearest emergency room facility on October 22, 2009.


CONCLUSION OF LAW

The criteria for entitlement to payment or reimbursement of unauthorized medical services in connection with ER treatment at OGH on October 22, 2009 have been met.  38 U.S.C.A. § 1725 (West 2002); 38 C.F.R. §§ 17.1000-17.1005 (2013). 

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran seeks payment or reimbursement of unauthorized medical services in connection with treatment at the OGH ER on October 22, 2009.  A Veteran may obtain reimbursement for medical expenses rendered at a non-VA facility under either 38 U.S.C.A. § 1725 or 38 U.S.C.A. § 1728.  As the Veteran is not service-connected for any disease or disability, the provisions of 38 U.S.C.A. § 1728 are not for application. 

The criteria set forth in 38 U.S.C.A. § 1725 provide general authority for reimbursement for the reasonable value of emergency treatment furnished in a non-VA facility for those veterans who are active VA health-care participants (enrolled in the annual patient enrollment system and recipients of VA hospital, nursing home, or domiciliary care under such system within the last 24-month period) and who are personally liable for such treatment, and not eligible for reimbursement under the provisions of 38 U.S.C.A. § 1728.  See 38 U.S.C.A. § 1725 (West 2002); 38 C.F.R. § 17.1002 (2013). 

"Emergency treatment" under the statute is defined as medical care or services furnished when (A) VA 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) only until such time as the veteran can be transferred safely to a VA or other Federal facility.  38 U.S.C.A. § 1725(f)(1). 

The implementing regulation, 38 C.F.R. § 17.1002, states that emergency services exist where treatment is for a condition of such a nature that a prudent lay person would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health, and indicates that this standard is met if there is an emergency medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) that a prudent lay person who possesses an average knowledge of health and medicine would 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. 

As a reference point, an emergency is also defined as "a sudden, generally unexpected occurrence or set of circumstances demanding immediate action."  Hennessey v. Brown, 7 Vet. App. 143, 147 (1994) (citations omitted). 

An example of when VA or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable is when a veteran is brought to a hospital in an ambulance and the ambulance personnel determines that the nearest available appropriate level of care is at a non-VA medical center.  See 38 C.F.R. § 17.1002(c). 

In order to obtain reimbursement for non-VA emergency services furnished to a veteran for non-service-connected conditions, all of the criteria in § 1725 and its implementing regulations must be satisfied.  See 38 C.F.R. §§ 17.100-17.1008. 

Additionally, regulations provide that 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.  38 C.F.R. §§ 17.52, 17.53.  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. 

The facts of this case may be briefly summarized.  The Veteran is shown to be an active VA health-care participant.  At some point in mid-October, he incurred a traumatic injury to his abdominal area.  The Veteran's account as to the circumstances of the injury is very inconsistent, but those inconsistencies are not material to the dispositive issues in this case.

At approximately 4:30 p.m. on October 22, 2009, the Veteran experienced the sudden onset of "coca-cola" colored hematuria in the context of a recent abdominal trauma and no prior history of hematuria.  See OGH ER record dated October 22, 2009.

The Board takes judicial notice from reliable internet information that the nearest VA clinic, the Olean VA CBOC, closed at 4:30 on October 22, 2009.  See generally Smith (Brady) v. Derwinski, 1 Vet. App. 235, 238 (1991) (Courts may take judicial notice of facts not subject to reasonable dispute).  The nearest VAMC in Buffalo, New York, was located approximately 75 miles away from the Veteran's location (his home) according to MapQuest (which is deemed sufficiently reliable for purposes of this decision). 

At 6:41 p.m. on October 22, 2009, the Veteran presented to the OGH ER where it was determined that medical services were required, including CT scans of the abdomen and pelvis, urinalysis and blood work.  At 10:31 p.m., the OGH ER contacted the Buffalo VA to determine a referring physician.  The Veteran was discharged for home at 11:30 pm with a diagnosis of hematuria.

Here, the Canandaigua VAMC's decisional documents state that the Chief of Staff has determined that the Veteran's treatment on October 22, 2009 was for a non-emergent condition, and that VA was able to provide treatment.  The probative value of this opinion is substantially reduced as there is no reasoning provided.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (noting that a probative medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions).

On the other hand, the Veteran's treating VA physician wrote an opinion in August 2010 noting that the Veteran's emergency room visitation for gross hematuria after a traumatic injury was "appropriate and prudent given the circumstances."  

Here, the Veteran experienced the sudden onset of hematuria which, given the recent history of abdominal trauma, is deemed a sufficiently distressing medical circumstance.  The nearest VA CBOC was closed, and the nearest available VA facility was located 75 miles from his home.  Clearly, the transit to the Buffalo VAMC involved a considerable amount of traveling time and distance.  

A VA Chief of Staff has provided opinion that the October 22, 2009 ER visitation at OGH was for a non-emergent condition.  This after-the-fact assessment of the evidentiary record appears to be factually correct.  However, the absence of an actual medical emergency is not dispositive of the claim.  The implementing regulation for 38 U.S.C.A. § 1725 clearly requires a review of the evidentiary record to determine whether the Veteran's assessment to seek non-VA medical treatment would be consistent with that of a prudent person in similar circumstances. 

The Veteran's VA clinic physician has concluded that the Veteran's ER visitation to OGH on October 22, 2009 was appropriate and prudent given the circumstances.  The Board places greater probative weight to the VA clinician's opinion as this physician has provided reasoning based upon the Veteran's subjective viewpoint whereas the Chief of Staff opinion contains no reasoning.

In light of the sudden onset of hematuria in the context of a prior abdominal injury, no prior history of hematuria and an approximate 75 mile drive to the nearest available VA facility, the Board finds that the Veteran acted as a reasonably prudent person would have in similar circumstances by seeking immediate medical attention at the nearest emergency room facility on October 22, 2009.  As the remaining factors of 38 U.S.C.A. § 1725 have been met, the Board resolves reasonable doubt in favor of the Veteran by finding he is entitled to payment or reimbursement for unauthorized medical services under 38 U.S.C.A. § 1725 in connection with ER treatment at OGH on October 22, 2009.  The claim, therefore, is granted.

Finally, as this claim is granted in full, any potential error in VA's duty to notify or assist the Veteran, or in the conduct of the August 2011 Travel Board hearing, would not be prejudicial to the Veteran and need not be discussed.



ORDER

The claim of entitlement to payment or reimbursement for unauthorized medical services in connection with ER treatment at OGH on October 22, 2009 is granted.



____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs