Citation Nr: 1410148 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 10-15 096 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Muskogee, Oklahoma THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred from August 28, 2009, to August 29, 2009. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1968 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 decision by or on behalf of the Muskogee, Oklahoma, Department of Veterans Affairs (VA) Medical Center (MC). In March 2011, the Veteran testified at a personal hearing before the undersigned Acting Veterans Law Judge. A copy of the transcript of that hearing is of record. The issue on appeal was adequately explained to him and the submission of evidence which he may have overlooked and which would be advantageous to his position was suggested. See 38 C.F.R. § 3.103(c) (2013). FINDING OF FACT The non-VA medical treatment the Veteran received from August 28, 2009, to August 29, 2009, was not authorized by VA and was not rendered in a medical emergency, or under circumstances that a reasonably prudent layperson would have understood to be an emergency, and the contemporaneous evidence establishes that the Veteran did not believe that absence of immediate treatment would place his health in jeopardy. CONCLUSION OF LAW The criteria for payment or reimbursement of unauthorized medical expenses incurred from August 28, 2009, to August 29, 2009, are not met. 38 U.S.C.A. § 1725 (West 2002); 38 C.F.R. § 17.1002 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate his claim by correspondence dated in November 2009. The notice requirements pertinent to the issue on appeal have been met and all identified and authorized records relevant to the matter have been requested or obtained. There is no evidence of any additional existing pertinent records. The Board finds that further attempts to obtain additional evidence would be futile. The available evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to adjudicate the claim would not cause any prejudice to the appellant. VA law provides that payment or reimbursement for emergency services for nonservice-connected conditions in non-VA facilities under 38 U.S.C.A. § 1725 (West 2002) for emergency treatment (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)) will be made only if all of the following conditions are met: (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 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); (d) 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; (e) The veteran is financially liable to the provider of emergency treatment for that treatment; (f) 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 the 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); (g) 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, the veteran's liability to the provider; and (h) 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 (2013). VA only has the authority to make payments for reimbursements of unauthorized medical treatment when the expense was incurred for an emergency as defined by applicable law. Fritz v. Nicholson, 20 Vet. App. 507 (2006) (Congress has authorized the Secretary to reimburse veterans for unauthorized emergency medical treatment under two statutory provisions, 38 U.S.C. § 1728 and 38 U.S.C. § 1725). For VA payment or reimbursement of unauthorized medical expenses purposes, the term "medical emergency" should be considered in light of whether a "reasonable prudent layperson" would believe delay would be "hazardous to life or health." Swinney v. Shinseki, 23 Vet. App. 257, 262 (2009). In this case, records show the Veteran received non-VA emergency department medical services from Friday, August 28, 2009, to Saturday, August 29, 2009, associated with his chief complaint of frontal headache over three months. The emergency department treatment report shows he was ambulatory on arrival at 11:49 pm and was triage level 3. It was noted he stated his headache had been present "all day," intermittently worse that night, but better with Aleve and if he took off his glasses. His pain was reported as 2/10 upon admission to the Emergency Department (ED). Vital signs included blood pressure of 113/68, heart rate of 58, and temperature of 96.5 degrees. A history of present illness noted he complained of a headache that began that day and that he reported symptoms off and on over two to three months with mild nausea and sharp throbbing pain. The physician provided a diagnosis of migraine cephalgia and signed the report at 12:55 a.m. A nurse initial assessment report noted the Veteran complained of a headache that was a deep, achy discomfort with associated nausea. He also reported that it had continued off and on since its onset 3 months earlier. A health history report signed by a physician noted the Veteran reported he had experienced pain all day with a present level of pain of 2 on a 10 point scale located at the temple, across the eyes. It was reported that his pain had been worse, at level 8 or 9 intermittently. Nursing records show the Veteran was transferred to a room at 12:45 a.m. with pain at level 2 and that he left before intended discharge at 3:05 a.m. In his notice of disagreement, the Veteran asserted that his August 2009 treatment had been for an emergency. He stated that it had occurred at night and that the nearest VA hospital was 30 miles away in Muskogee. A January 2010 VA clinical review recommended the Veteran's claim be denied because VA facilities were feasibly available. It was noted, in essence, that the emergency room record showing a triage severity at level 3 on a scale from 1 to 4 did not document a condition requiring emergency care. It was further noted that the Veteran reported a history of headaches for two to three months. He had endured that particular episode of headache pain over the course of the day, presenting at the emergency room shortly before midnight. His vital signs in the emergency room were within normal limits. The physician found the Veteran could have availed himself of appropriate, available VA services. At his personal hearing in March 2011 the Veteran testified that the distance from his home to the Muskogee VA VAMC was about 40 miles and that VA outpatient clinics were closed at night. He reported that at the time of the treatment at issue he was in fear for his life and that VA telephone recordings directed that in medical emergencies the caller should go to the nearest emergency care or call 911. He stated he had been enrolled for VA health care treatment, that he was financially liable for the emergency room expenses, and that he had no other health insurance coverage. He stated that he had driven himself to the emergency room and, in essence, that he believed he had a presumption of VA payment because of payment in similar circumstances associated with attacks related to esophagus and hiatal hernia problems. It was also asserted that he had diabetes and high blood pressure and that because he was unable to determine whether or not he was having a heart attack, he sought emergency room treatment in good faith. Based upon the evidence of record, the Board finds the non-VA medical treatment the Veteran received from August 28, 2009, to August 29, 2009, was not authorized by VA and was not rendered in a medical emergency. VA records show the Veteran has established service connection for degenerative arthritis of the right foot. However, the Veteran does not contend and the evidence does not demonstrate that his emergency room treatment in August 2009 was authorized by VA or was associated with his service-connected disability. The Board finds that based upon the overall evidence of record the initial evaluation and treatment demonstrated upon the Veteran's emergency room presentation on August 28, 2009, was not 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. In fact, the reports show the Veteran's self-assessment of his acute pain upon arrival at the emergency room was not severe. He is also shown to have driven himself to the emergency room. A January 2010 VA medical opinion found the reported triage level did not demonstrate a condition requiring emergency care. The Board finds there is no indication the Veteran was in such acute distress upon his arrival at the emergency room that a prudent layperson that possessed an average knowledge of health and medicine could have reasonably expected the absence of immediate medical attention to result in placing his health in serious jeopardy. The Veteran testified that he was in fear that he was having a heart attack. However, there is no evidence in the contemporaneous records or testimony that the Veteran reported acute distress, reported that he might be having a heart attack, that he sought someone else to travel with him, or that he attempted to check his blood pressure or blood sugar. Rather, the Veteran reported that Aleve decreased the severity of his headache. The Veteran's use of Aleve for his symptoms contradicts his testimony that he feared that delay in seeking medical care would have been hazardous to his life or health. The Veteran contends that the Board cannot complete adjudication of this claim without reference to private treatment records of earlier ED visits in 2008, for which VA reimbursed the private provider. To the contrary, the Board finds that the most probative and persuasive evidence as to whether the Veteran met the criteria governing VA's determination in this case is the ED record at the time the Veteran sought the treatment for which he seeks reimbursement. That evidence is associated with the claims file. The ED record of the Veteran's August 28, 2009 and August 29, 2009 treatment does not reflect that the Veteran reported that he had previously been treated for similar pain on an emergency basis, nor did the Veteran advise the ED that he had been treated for similar pain in the past. The Veteran did not report chest pain. Rather, the ED records clearly indicate that the location of the Veteran's discomfort was "headache." The Veteran denied radiation of discomfort. The Veteran reported to the ED that he was "driving" at the outset of the headache. The Veteran's contemporaneous description of his symptoms on August 28, 2009, at the time of the private treatment for which he seeks reimbursement, rather than other instances of emergency treatment, establishes whether the Veteran expected that the absence of immediate medical attention could result in placing his health in jeopardy when he sought the treatment at issue. The Veteran himself has estimated and testified that the Muskogee VA Medical Center was approximately 40 miles away. The evidence provided shows that the VA Medical Center was feasibly available to him. As the Veteran does not meet all the criteria for VA payment or reimbursement, his appeal must be denied. When all the evidence is assembled, VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The Board finds that the preponderance of the probative and persuasive evidence is against the claim, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to payment or reimbursement of unauthorized medical expenses incurred from August 28, 2009, to August 29, 2009, is denied. ____________________________________________ Tresa M. Schlecht Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs