Citation Nr: 1342230	
Decision Date: 12/20/13    Archive Date: 12/31/13

DOCKET NO.  10-30 372	)	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 during ambulance services and a hospitalization at Mitchell County Hospital on December 29, 2008.



REPRESENTATION

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

Paul S. Rubin, Counsel



INTRODUCTION

The Veteran had active service in the United States Army from December 1967 to September 1977.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 decision by the Department of Veterans Affairs (VA) Medical Center (VAMC) in Gainesville, Florida.

A review of the Virtual VA paperless claims processing system reveals a pertinent November 2013 brief from the Veteran's representative that has been reviewed by the Board.  A review of the Veterans Benefits Management System (VBMS) does not reveal any additional documents pertinent to the present appeal.



FINDINGS OF FACT

1.  The Veteran has permanent and total disability from service-connected posttraumatic stress disorder (PTSD). 

2.  On the afternoon of December 29, 2008, the Veteran received ambulance services and private care at Mitchell County Hospital for a nonservice-connected disability that was assessed as a muscle strain (pulled muscle) of the right groin.  

3.  The totality of the evidence reveals that the Veteran's ambulance services and private care on December 29, 2008, were not rendered in a "medical emergency" 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.  

4.  The totality of the evidence reveals that during the Veteran's ambulance services and private care on December 29, 2008, VA facilities were feasibly available and an attempt to use them beforehand would have been considered reasonable by a prudent layperson.

CONCLUSION OF LAW

The criteria are not met for payment or reimbursement of unauthorized medical expenses incurred during ambulance services and a hospitalization at Mitchell County Hospital on December 29, 2008.  38 U.S.C.A. §§ 1703, 1728, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 17.53, 17.120(b) - (c), 17.130 (2013).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Duties to Notify and Assist

Review of the medical expenses folder, more commonly known as the duplicate Consolidated Health Record (CHR) file or Medical Administration Service (MAS) folder, reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq.  See also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The duty to notify was accomplished by way of a VCAA letter sent from the VAMC to the Veteran dated in February 2010.  This letter satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing him about the information and evidence not of record that was necessary to substantiate his medical expense reimbursement claim; (2) informing him about the information and evidence the VA would seek to provide; and (3) informing him about the information and evidence he was expected to provide.  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  Specifically, this letter advised the Veteran that, in order to substantiate his unauthorized medical expenses claim, he must submit or identify evidence that demonstrated that his private care was rendered in "emergent" circumstances and that VA facilities were not feasibly available at the time.  In a VA Fact Sheet enclosed with the VCAA letter, the Veteran was correctly advised of the prudent layperson definition of emergency care that applies in the present case.  

Moreover, the Veteran's personal statements demonstrate he has actual knowledge of what evidence is required to establish payment or reimbursement of unauthorized medical expenses in the instant case.  See Mlechick v. Mansfield, 503 F.3d 1340, 1345 (Fed. Cir. 2007) (any notice error not prejudicial when claimant has actual knowledge of the evidence needed to substantiate claim).  Specifically, the Veteran has argued that VA facilities were not "feasibly available" on the afternoon of December 29, 2008, as the nearest VA Medical Center (VAMCs) were over three hours away.  He has also asserted that a medical emergency existed because his pain was "severe" (10/10) due to pulled ligaments, he had "no choice" but to take an ambulance, and the onset was sudden.  See January 2010 Notice of Disagreement (NOD); May 2010 VA Form 9; March 2010 Veteran's statement; March 2010 representative brief.  Although the February 2010 statement of the case (SOC) provided the Veteran with a copy of several non-applicable regulations pertinent to "prior authorization" or contract with non-VA facilities for care (see 38 U.S.C.A. § 1703(a); 38 C.F.R. § 17.52(a)), there is no prejudice shown, as the Veteran has clearly demonstrated that he is aware of the criteria necessary to substantiate his "unauthorized" medical expenses claim.  In fact, in a March 2010 representative statement, the regulatory language for what constitutes emergency care under the prudent layperson standard, as well as some of the regulatory language for "feasible availability" of VA facilities, was included by the Veteran's representative.  Thus, no harm or prejudice has resulted to the Veteran.  See 38 C.F.R. § 20.1102; Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).  Accordingly, the Board is satisfied the Veteran was afforded a meaningful opportunity to participate in the adjudication of his claim.  Overton v. Nicholson, 20 Vet. App. 427, 435 (2006).  

Overall, the Board concludes that there is no prejudicial error in the content of VCAA notice.  See Shinseki v. Sanders, 556 U.S. 396 (2009) (An error in VCAA notice should not be presumed prejudicial and the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis).  

The Board also finds that the duty to assist has been met.  All pertinent private hospitalization records and medical bills were submitted or obtained, and the VAMC secured VA treatment records.  VA also obtained May 2009 and January 2010 VA clinician opinions to address the issue of whether the Veteran's treatment was rendered in a medical emergency and whether VA or other Federal facilities were feasibly available.  The Veteran has also submitted medical evidence and personal statements and representative argument.  There is no indication from the records or the Veteran and his representative that there is any outstanding evidence pertinent to the issue being decided herein.  Thus, the Board is satisfied that the duty to assist has been met.  38 U.S.C.A. § 5103A.



Factual Background

The Veteran has a history of treatment for a nonservice-connected stroke with left hemiparesis on his left side.  The stroke occurred in 1991.  He also has a seizure disorder and hypertension, which are both controlled by medication.  He uses a wheelchair due to his previous stroke, but can still walk with a walker or cane when needed.  He is now 64 years old.  He also has two service-connected disabilities: PTSD, rated as 100 percent disabling, and coronary artery disease, rated as 60 percent disabling.  Notably, he is considered by VA to have a permanent and total disability from his service-connected conditions, in particular his PTSD.  

The Veteran was taken by ambulance to the emergency room of the Mitchell County Hospital in Camilla, Georgia, on the afternoon of Monday, December 29, 2008, at approximately 12:42 p.m., after experiencing sudden right hip, low back, right leg, and right groin pain.  He was diagnosed with a muscle strain (pulled muscle).  He was prescribed pain medication and given intramuscular injections.  He was discharged several hours later at 3:50 p.m.  

In the May 2009 administrative decision on appeal and the February 2010 statement of the case (SOC), the VAMC denied the Veteran's medical reimbursement claim.  In particular, the VAMC determined that the Veteran's ambulance services and private hospitalization on December 29, 2008, were not for "emergency treatment" and that VA facilities were "feasibly available" at that time.  

The Veteran has requested reimbursement for his unauthorized medical expenses, to include ambulance services and private hospitalization at the Mitchell County Hospital on December 29, 2008.  He has contended that the ambulance services and private hospitalization on December 29, 2008, was rendered in a "medical emergency" 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.  He has stated that the ambulance had no choice but to bring him to the private hospital due to the severity of his condition.  He has also asserted that the nearest VAMCs in Dublin, Georgia, or Gainesville, Florida, were not feasibly available at the time of the private hospitalization due to the geographical distance involved from his home (three hours drive) and the severity of his pain.  He has also submitted several invoices.  See January 2010 NOD; May 2010 VA Form 9; March 2010 Veteran's statement; March 2010 representative brief.


Governing Laws and Regulations 

Initially, under 38 U.S.C.A. § 1703, when VA facilities or other government facilities are not capable of furnishing economical hospital care or medical services because of geographic inaccessibility or are not capable of furnishing care or services required, VA may authorize or contract with non-VA facilities for care.  38 U.S.C.A. § 1703(a) (West 2002 & Supp. 2013); 38 C.F.R. § 17.52(a) (2013).  However, the Veteran has never contended, and the evidence does not demonstrate, that he received prior VA authorization for his private hospitalization.  Therefore, application of 38 U.S.C.A. § 1703(a) for reimbursement of "authorized" private hospitalization is unwarranted.  In short, the issue of prior authorization is not applicable here. 

Regardless, when the Veteran receives treatment at a non-VA facility without prior authorization, such as the case here, there are two statutes that allow for claimants to be paid or reimbursed for the medical expenses incurred for that treatment, specifically 38 U.S.C.A. § 1728 and 38 U.S.C.A. § 1725.  Application of either statute is generally dependent on whether the Veteran has an adjudicated service-connected disability.   

Effective October 10, 2008, the provisions of 38 U.S.C.A. § 1725 and § 1728 were amended.  See Veterans' Mental Health and Other Care Improvements Act of 2008, Pub. L. No. 110-387, § 402, 122 Stat. 4110 (2008).  This bill made various changes to Veteran's mental health care and also addresses other health care related matters.  The changes are liberalizing in that they make reimbursement for medical expenses mandatory instead of discretionary, as well as expand the definition of "emergency treatment" beyond the point of stabilization.  In addition, the changes apply the more liberal prudent layperson standard for determining whether an actual medical emergency existed under either 38 U.S.C.A. § 1725 and § 1728.  The Board will apply the more liberal amended law in this case because the Veteran's private treatment occurred in December 2008, subsequent to the October 2008 effective date of the amendments.  

At the outset, the Board notes that, under 38 U.S.C.A. § 1725, pursuant to the Veterans Millennium Health Care and Benefits Act, payment or reimbursement of non-VA emergency medical services for nonservice-connected disorders for Veteran's without insurance is available if certain conditions are met.  38 U.S.C.A. § 1725 (West 2002 & Supp. 2013); 38 C.F.R. §§ 17.1000-17.1008 (2013).  However, in the present case, section 1725 for nonservice-connected disorders does not apply because the Veteran has had permanent and total disability from his service-connected PTSD since July 30, 1996.  See 38 U.S.C.A. § 1728(a)(3); 38 C.F.R. §§ 17.120(a)(3), 17.1000, 17.1002(h).  As such, only 38 U.S.C.A. § 1728 for Veterans with service-connected disability is for consideration here.  In any event, failure to consider section 1725 for nonservice-connected disorders is of no consequence in this case because the definition of what constitutes "emergency treatment" under either 38 U.S.C.A. § 1725 or § 1728 is now the same.  That is, both 38 U.S.C.A. § 1725 and § 1728 now define "emergency treatment" under the more liberal "prudent layperson standard."  

Under the amended version of 38 U.S.C.A. § 1728, the statute remains the same as to the initial eligibility requirement for treatment of a service-connected disability.  However, the amended statutes expand the meaning of "emergency treatment" under section 1725(f)(1) and section 1728(c) by stating:  

(1) The term "emergency treatment" means medical care or services furnished, in the judgment of the Secretary--

(A) when Department 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) until--

(i) such time as the Veteran can be transferred safely to a Department facility or other Federal facility and such facility is capable of accepting such transfer; or

(ii) such time as a Department facility or other Federal facility accepts such transfer if--

(I) at the time the Veteran could have been transferred safely to a Department facility or other Federal facility, no Department facility or other Federal facility agreed to accept such transfer; and

(II) the non-Department facility in which such medical care or services was furnished made and documented reasonable attempts to transfer the Veteran to a Department facility or other Federal facility.

See 38 U.S.C.A. § 1725 and § 1728 (West 2002 & Supp. 2013).  All three elements must be satisfied for a claimant to qualify for payment or reimbursement.  Zimick v. West, 11 Vet. App. 45, 49 (1998); Malone v. Gober, 10 Vet. App. 539, 544 (1997).  That is, these criteria under 38 U.S.C.A. § 1725 and § 1728 are conjunctive, not disjunctive; thus, all criteria must be met.  See Melson v. Derwinski, 1 Vet. App. 334 (June 1991) [use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met]; compare Johnson v. Brown, 7 Vet. App. 95 (1994) [only one disjunctive "or" requirement must be met in order for an increased rating to be assigned].

With regard to the issue of what constitutes a "medical emergency," under the prudent layperson standard, emergency treatment not previously authorized including medical services, professional services, ambulance services, ancillary care and medication (including a short course of medication related to and necessary for the treatment of the emergency condition that is provided directly to the patient for use after the emergency condition is stabilized and the patient is discharged) must be rendered in a medical emergency of such 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 is met by 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.  38 C.F.R. § 17.120(b) (2013).  

The Court has also held that both medical and lay evidence may be considered in a prudent layperson evaluation for determining what constitutes a "medical emergency."  That is, VA should weigh "the totality of the circumstances" to determine whether a prudent layperson would consider the situation emergent.  Swinney v. Shinseki, 23 Vet. App. 257, 264-266 (2009).

With regard to the issue of feasible availability, the admission of any patient to a private or public hospital at VA expense will only be authorized if a VA medical center or other federal facility to which the patient would otherwise be eligible for admission is not feasibly available.  38 C.F.R. § 17.53 (2013).  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.  Id.  When non-VA care is authorized in such circumstances, the authorization will be continued after admission only for the period of time required to stabilize or improve the patient's condition to the extent that further care is no longer required to satisfy the purpose for which it was initiated.  Id.

With regard to the issue of feasible availability, under 38 C.F.R. § 17.120(c), pertaining to service-connected disabilities, payment or reimbursement of the expenses of emergency treatment, not previously authorized, can be made when VA or other Federal facilities that VA has an agreement with to furnish health care services for Veterans were not feasibly available, and an attempt to use them beforehand or obtain prior VA authorization for the services required would not have been reasonable, sound, wise, or practicable, or treatment had been or would have been refused.

With regard to the issue of feasible availability, although pertaining to nonservice-connected disabilities, 38 C.F.R. § 17.1002(c) also provides further guidance.  
Under 38 C.F.R. § 17.1002(c), payment or reimbursement of the expenses of emergency treatment, not previously authorized, can be made when VA or other Federal facility/provider that VA has an agreement with to furnish health care services for Veterans 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 the nearest available appropriate level of care was at a non-VA medical center).

With regard to the issue of feasible availability, 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 (2012).

In determining the claim at issue, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Analysis

The issues in the present case are the following: (1) whether the December 29, 2008 ambulance services and hospitalization at Mitchell County Hospital was 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; and (2) whether a VA or other Federal facility/provider was not feasibly available on the afternoon of Monday, December 29, 2008, and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson.  See 38 U.S.C.A. §§ 1725(f)(1), 1728(c); 38 C.F.R. §§ 17.53, 17.120(b), (c).  Simply stated, in the present case, the Veteran prevails if the Board concludes a "medical emergency" existed and a VA facility was not feasibly available on the afternoon of December 29, 2008, under applicable VA law and regulations.  Incidentally, VA's authorization to make payment beyond the point of stabilization is not at issue here because the Veteran was only hospitalized for several hours and left on his own accord after he was considered stabilized.  See 38 C.F.R. §§ 17.53, 17.121 (2013).  

Upon review of the evidence, the Board finds that the requirements for payment or reimbursement for unauthorized emergency medical treatment on December 29, 2008, under the amended version of 38 U.S.C.A. § 1728 are not met.  In this regard, the totality of the circumstances demonstrates that the Veteran's December 29, 2008, ambulance services and hospitalization was not "emergency treatment" under the amended version of 38 U.S.C.A. § 1725(c).  That is, the evidence of record establishes that no medical emergency existed and that VA facilities were feasibly available at that time.  

With regard to lay evidence, the Veteran has contended that his ambulance services and private hospitalization on December 29, 2008, were rendered in a "medical emergency" 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.  He has asserted that a medical emergency existed after he "fell" at his home because his pain was "severe" (10/10) due to pulled ligaments.  He has stated that he could not move without pain and had "no choice" but to take an ambulance.  He has also noted that the onset was sudden.  The Veteran has claimed that the ambulance had no choice but to bring him to the private hospital because the nearest VAMCs in Dublin, Georgia, or Gainesville, Florida, were not feasibly available at the time of the private hospitalization due to the geographical distance from his home (three hours drive) and due to the severity of his pain.  See January 2010 NOD; May 2010 VA Form 9; March 2010 Veteran's statement; March 2010 representative brief.

With regard to medical evidence on the issue of whether a "medical emergency" existed, a Monday, December 29, 2008, Mitchell County EMS report from ambulance services noted that they responded to the Veteran's home due to a report of pain to the right hip, back, and groin area at 12:39 p.m.  Upon arrival, the Veteran was sitting in a wheelchair due to an earlier stroke (CVA) from years before.  He reported the sudden onset of pain in the right hip, groin, and low back.  Notably, the Veteran stated that he did not fall, which contradicts his latter lay assertion that the incident was the result of a fall.  He was transported by ambulance to the Mitchell County Hospital emergency department (ER) from 12:48 p.m. to 1:02 p.m., with no changes or difficulty on route.  This was a 12 mile trip.  It was noted that he was in no apparent distress, and he refused EMS personnel's attempt to put an IV HEP lock on him.  EMS personnel noted that the choice of ambulance transportation was the Veteran and his family's choice.  No red lights or sirens were used during the ambulance trip.  

With regard to medical evidence on the issue of whether a "medical emergency" existed, the Veteran checked in at the Mitchell County Hospital in Camilla, Georgia, on the afternoon of Monday, December 29, 2008, at approximately 1:09 p.m.  It was noted that he did not know how his right hip pain started.  There was no mention of a fall, which again contradicts his latter lay assertions.  He described his pain as "severe," (10/10).  Objectively, however, only "mild" distress was observed.  Limited range of motion due to pain and tenderness of the thigh / hip was assessed.  His physical examination was otherwise normal, with motor and sensory testing intact.  His pulse, temperature, respiration, and blood pressure were all taken when he arrived, but no abnormalities were noted.  His skin, head / ENT, respiratory, abdomen, cardiovascular, neurological, psychological, gastrointestinal, and other musculoskeletal examinations were also all normal.  On a Medical Screening Form dated at 2:51 p.m., a medical emergency was not conceded, as "further evaluation" was required to determine if a medical emergency actually existed.  The Veteran denied having a regular primary care doctor.  He was diagnosed with a muscle strain (pulled muscle) of the right groin.  He was prescribed pain medications and given intramuscular injections.  An ice pack to the groin was recommended.  By 3:50 p.m., the Veteran reported "feeling much better" and was discharged at that time.  If his symptoms worsened, he was instructed to return.  Overall, these facts documented in the private hospital and EMT records provide strong evidence against the claim, as they support a situation that was non-emergent and directly contradict the Veteran's latter assertion that he "fell" causing his injury.  

With regard to medical evidence on the issue of whether a "medical emergency" existed, the Board has also considered the May 2009 and January 2010 VA clinical reviews by VA physicians.  The May 2009 VA clinician advised that there was "no clear medical emergency."  The diagnosis was sprains and strains.  The January 2010 VA clinician also opined that the situation was "non-emergent."  The clinician noted the Veteran's report that he fell, pulled numerous ligaments, and could not move without his pain level being a 10/10, such that he was forced to call 911.  Regardless, the January 2010 VA clinician upheld the previous negative determination of a "non-emergent" situation.  These VA clinician opinions also provide strong evidence against the Veteran's assertion that a "medical emergency" existed under 38 U.S.C.A. § 1728(c).  There is no contrary medical opinion of record.       

The Board must determine, as a question of fact, both the weight and credibility of the evidence.  Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value.  The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence.  See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 38 C.F.R. § Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991).  The Veteran's credibility affects the weight to be given to his testimony and lay statements, and it is the Board's responsibility to determine the appropriate weight.  See Washington, 19 Vet. App. at 368.

Credibility can be generally evaluated by considering interest, bias, or inconsistent statements, the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony."  Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  Personal interest may affect the credibility of the evidence.  Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Caluza, 7 Vet. App. at 506 (citing State v. Asbury, 415 S.E.2d 891, 895 (W. Va. 1992).

Although the Veteran is competent to describe his symptoms on the morning of December 29, 2008, the Board finds the medical evidence of record on the issue of whether a "medical emergency" existed at that time to be more credible and probative than the Veteran's lay assertions.  That is, for the most part, the medical evidence of record does not support the Veteran's lay assertions and instead provides affirmative evidence against them.  The Board acknowledges that the onset of the Veteran's pain to the right hip, back, and groin area was sudden and acute.  However, as noted above, the medical evidence of record directly contradicts the Veteran's latter lay assertion that he sustained a fall or injury.  Thus, the Veteran's statements have been inconsistent regarding the description of the circumstances of the onset of his pain, notably alleging that he sustained a fall only after he filed his claim for reimbursement for unauthorized medical expenses.  In addition, no medical personnel confirmed that his pain or condition was "severe" as the Veteran has alleged.  Rather, the medical record documents that only "mild" distress was observed.  His symptoms simply did not rise to a severe level when he was objectively examined.  Medical records also show that he was transported to the Mitchell County Hospital ER from 12:48 p.m. to 1:02 p.m. with no changes or difficulty on route.  It was objectively assessed that he was in no apparent distress, and he refused an IV HEP lock.  EMS personnel also noted that the choice of ambulance transportation was the Veteran and his family's choice.  Furthermore, on a Medical Screening Form dated at 2:51 p.m., a medical emergency was not conceded, as "further evaluation" was required to determine if a medical emergency actually existed.  The observation of unbiased, skilled medical professionals is more probative as to the severity of the Veteran's condition on the afternoon of December 29, 2008.  No medical personnel ever described his condition as "severe."  His muscle strain (pulled muscle) of the right groin simply was not a "serious" condition.  There is no persuasive medical or lay evidence of record that a "medical emergency" existed on the afternoon of December 29, 2008.  

Per the Swinney case, the Board has reviewed and discussed both the medical and lay evidence in a prudent layperson evaluation for determining what constitutes a "medical emergency."  In short, the totality of the evidence establishes that a medical emergency did not exist on the afternoon of December 29, 2008.  It is not shown 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.  38 C.F.R. § 17.1002(b).  

Because the facts do not meet the "medical emergency" requirement for emergency treatment under 38 U.S.C.A. § 1728(c), reimbursement is prohibited.  The Board need not address other criteria such as the "feasible availability" of VA facilities, as the failure to meet any of the criteria precludes payment or reimbursement of unauthorized medical expenses.  Zimick, 11 Vet. App. at 49; Malone, 10 Vet. App. at 544.   

In any event, under VA regulation, 38 C.F.R. § 17.53, 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.  Under 38 C.F.R. § 17.120(c), in determining feasible availability of VA facilities, the Board must also consider whether an attempt to use them beforehand or obtain prior VA authorization for the services required would not have been reasonable, sound, wise, or practicable, or treatment had been or would have been refused.  

As to the relative distance of the travel involved, the Board, and its reviewing Courts, may take judicial notice of facts, as compared to evidence, which are not subject to interpretation.  See, e.g., Yeoman v. West, 140 F.3d 1443 (Fed. Cir. 1998); Dedicatoria v. Brown, 8 Vet. App. 441 (1995) (judicial notice of laws).   In this respect, the Board takes judicial notice that the nearest VA Clinic from the Veteran's home was the VA Clinic in Albany, Georgia, which is approximately 40 miles away and a 45 minute drive.  The Mitchell County Hospital where the Veteran was treated was approximately 12 miles away and a 16 minute drive.  The Veteran's medical condition was not severe enough that he could not have visited the VA Clinic in Albany, Georgia, which could have handled the Veteran's diagnosis of a muscle strain (pulled muscle) of the right groin.  The distance to the VA clinic in Albany was not that much farther away, in light of the fact that it was objectively assessed by EMS personnel that the Veteran was in no apparent distress and experienced no changes or difficulty on route.  No red lights or sirens were used or needed during the ambulance trip.  

There is also no reason the VA clinic would have refused treatment for his muscle strain.  Thus, the nature of the treatment is not at issue.  Moreover, EMS personnel also noted that the choice of ambulance transportation was the Veteran and his family's choice.  The evidence does not establish that the EMS ambulance personnel themselves made the determination that the nearest available appropriate level of care was at a non-VA medical center.  See 38 C.F.R. § 17.1002(c).  It is not clear why the Veteran did not inform them that he received his prior medical treatment at the VA clinic in Albany.  The Board has already determined above that the Veteran's condition was non-emergent; as such, the urgency of the Veteran's medical condition did not make it necessary to use a private facility in lieu of a VA facility.  

Additionally, the Board has also considered the May 2009 and January 2010 VA clinical reviews by VA physicians.  The May 2009 VA clinician opined that VA facilities were feasibly available, noting that VA clinics are open on weekdays.  Likewise, the January 2010 VA clinician assessed that the Veteran should have registered at the nearest VA clinic.  There is no contrary medical opinion of record.  

In summary, on the afternoon of December 29, 2008, the Veteran's treatment was procured through private sources in preference to available Government facilities.  See 38 C.F.R. § 17.130.  No reimbursement or payment of services not previously authorized will be made in such circumstances.  An attempt to use VA facilities beforehand would have been considered reasonable by a prudent layperson.  See 38 C.F.R. §§ 17.120(c), 17.1002(c).  

Therefore, based on the foregoing, the Board concludes that the Veteran's ambulance services and private hospitalization on the morning of December 29, 2008, was not 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.  In addition, the VA Clinic in Albany was "feasibly available" on the afternoon of December 29, 2008.  See 38 U.S.C.A. § 1728(c); 38 C.F.R. §§ 17.53, 17.120(b), (c).  

Accordingly, the Board finds that the preponderance of the evidence is against payment or reimbursement of unauthorized medical expenses incurred during ambulance services and a hospitalization at Mitchell County Hospital on December 29, 2008.  38 U.S.C.A. §§ 1728, 5107 (West 2002 & Supp. 2013).   The claim is denied.











ORDER

Payment or reimbursement of unauthorized medical expenses incurred during ambulance services and a hospitalization at Mitchell County Hospital on December 29, 2008, is denied.   


____________________________________________
J.W. ZISSIMOS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs