Citation Nr: 1422014 Decision Date: 05/15/14 Archive Date: 05/29/14 DOCKET NO. 10-39 171 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Gainesville, Florida THE ISSUE Entitlement to payment or reimbursement for unauthorized medical expenses incurred for non-VA medical treatment received at Lake City Medical Center on September 15, 2009. ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to July 1968. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2010 decision by the Department of Veterans Affairs Medical Center (VAMC) in Gainesville Florida. In that decision, the VAMC denied the Veteran's claim for payment or reimbursement of unauthorized medical treatment received from the Lake City Medical Center on September 15, 2009. FINDINGS OF FACT 1. The Veteran has established service connection for post-traumatic stress disorder, rated as 70 percent disabling; and, he has been found to be permanently and totally unemployable for disability compensation purposes. 2. The medical treatment received by the Veteran on September 15, 2009 was 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. 3. Treatment at VA facilities was not feasibly available. CONCLUSION OF LAW The criteria for payment or reimbursement of unauthorized private medical expenses incurred on September 15, 2009 at Lake City Medical Center have been met. 38 U.S.C.A. §§ 1728 (West 2002); 38 C.F.R. §§ 17.120 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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." Fritz v. Nicholson, 20 Vet. App. 507, 509 (2006). 38 U.S.C.A. § 1728 restricts reimbursement for expenses resulting from unauthorized emergency medical treatment to treatment for a service-connected disability, a disability "associated with and held to be aggravating a service-connected disability," any disability "if the veteran has a total disability permanent in nature from a service-connected disability," or any "illness, injury, or dental condition" of a veteran who "is a participant in a vocational rehabilitation program." 38 U.S.C. § 1728(a)(1), (2), (3), (4)(A); Fritz, 20 Vet. App. at 509. Under that law, in order to be entitled to payment or reimbursement for medical expenses incurred without prior authorization from VA, all of the following must be shown: (1) That the treatment was either for an adjudicated service-connected disability, or for a nonservice-connected disability associated with and held to be aggravating an adjudicated service-connected disability, or for any disability of a veteran who has a total disability permanent in nature resulting from a service-connected disability (or, under certain circumstances, when participating in a course of vocational rehabilitation under the auspices of VA); and (2) that a medical emergency existed of such nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention for the initial evaluation and treatment would have been hazardous to life or health; and (3) that VA or other Federal facilities 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. 38 U.S.C.A. § 1728(a); 38 C.F.R. § 17.120. To be eligible for reimbursement for emergency treatment in a non-VA facility under 38 U.S.C.A. § 1725, several prerequisites must be satisfied, including an ineligibility for reimbursement for medical care or services under 38 U.S.C.A. § 1728. 38 U.S.C. § 1725(b)(3)(D); 38 C.F.R. § 17.1004. The VAMC adjudicated the claim under the criteria at 38 U.S.C.A. § 1728 because the Veteran has been found to be permanently and totally disabled for unemployability purposes as a result of his service-connected PTSD, rated as 70 percent disabling. See July 2010 VA-generated data sheet. The issue at hand, therefore, is whether the Veteran's private treatment on September 15, 2009 was emergent; and, whether VA facilities were not feasibly available. According to the record, the Veteran was seen for a VA neurology consultation on September 10, 2009 for "intractable" pain in the left upper arm. The report indicates that pain medications, including morphine, tramadol and gabapentin did not seem to help the pain. It was noted that an orthopedic/rheumatology consultation might be helpful. The Veteran sought treatment at a VA facility on September 14, 2009 for severe left upper arm pain. He walked in holding his left arm and explained that his pain was persistent. The Veteran requested an orthopedic consult immediately, but was told that orthopedics only comes there part time. The Veteran subsequently became very agitated and left the room indicating that he would blow his brains out. The clinician told the Veteran's wife that she was not authorized to give local steroid shots. Law enforcement was contacted to perform a wellness check and they showed up at his house that evening. According to the Veteran's wife, he voluntarily went with law enforcement for evaluation under the Baker Act at Meridian Behavioral Center. He was admitted there, but due to his severe left upper arm/shoulder pain, he was taken to Lake City hospital the next morning, September 15, 2009, for pain control where he received sufficient pain medication to decrease his pain to a tolerable level. He was discharged the same day. The above scenario describes a patient who was severely agitated because of the level of pain he was experiencing, but the VA facility at which he sought help was unable to provide him with adequate pain relief in a timely manner. According to 38 C.F.R. § 17.120, the prudent layperson 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; and, when VA services are not feasibly available. In this case, the prudent layperson would certainly find the situation described here was emergent. The Veteran was in such severe pain that he became agitated. He also indicated he was going to blow his brains out. Even if he was not actually planning a suicide, the fact that the Veteran has severe PTSD only serves to reaffirm that the Veteran's mental state could have been altered as a result of the severe pain he was experiencing. This is consistent with the fact that he was Baker-acted after VA refused to give him a steroid shot at the time of his appointment on September 14, 2009. Again, this is also consistent with the finding that Meridian Behavioral referred the Veteran for treatment at Lake City while he was under psychiatric evaluation and treatment. His pain level decreased to a tolerable level as a result of that treatment. For these reasons, and in particular because he was informed that adequate treatment was not available at VA the day prior, the Board finds that VA facilities were not feasibly available. See 38 C.F.R. § 17.120(c). Thus, the condition was emergent and VA facilities were not feasibly available. Consequently, and in resolving all doubt in favor of the Veteran, all of the criteria under § 1728(a) are met for reimbursement or payment by VA, under 38 U.S.C.A. § 1728 , of the cost of medical services provided on September 15, 2009. ORDER Reimbursement or payment of medical expenses for unauthorized medical treatment received on September 15, 2009 is granted. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs