Citation Nr: 1604859 Decision Date: 02/09/16 Archive Date: 02/18/16 DOCKET NO. 12-16 854 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in West Palm Beach, Florida THE ISSUE Entitlement to payment of or reimbursement for unauthorized emergency medical treatment provided by Lawnwood Regional Medical Center on November 20, 2010. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from May 1982 to May 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2011 decision by the Department of Veterans Affairs (VA) Medical Center in West Palm Beach, Florida that denied the Veteran's request for payment of or reimbursement for unauthorized emergency medical treatment provided by Lawnwood Regional Medical Center on November 20, 2010. In April 2014 the Veteran testified before the undersigned Veterans Law Judge in a "Travel Board" hearing at the VA Regional Office (RO) in St. Petersburg, Florida. A transcript of his testimony is of record. FINDINGS OF FACT 1. The Veteran was transported to Lawnwood Regional Medical Center (RMC) on November 20, 2010, due to symptoms that were not due to or the result of a service-connected disability. 2. The evidence is at least in equipoise in showing that the Veteran's treatment at Lawnwood RMC on November 20, 2010 was the result of a qualifying medical emergency for which VA medical treatment facilities were not reasonably available. CONCLUSION OF LAW The requirements for payment of or reimbursement for medical expenses arising from treatment provided to the Veteran at Lawnwood RMC on November 20, 2010, have been met. 38 U.S.C.A. §§ 1725, 5107 (West 2014); 38 C.F.R. §§ 3.102, 17.1002 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board's decision below represents a complete grant of the benefit sought on appeal. Accordingly, a discussion of VA's duties to notify and assist is not required. There are two statutes that authorize reimbursement for unauthorized emergency medical treatment at non-VA facilities. The provisions of 38 U.S.C.A. § 1728 require among other things that the treatment have been for a service-connected disability or that the Veteran have a service-connected disability rated permanent and total. The Veteran in this case has two service-connected disabilities; i.e., a left knee disability and tinnitus. The emergency charges on appeal do not result from either service-connected disability, so reimbursement under 38 U.S.C.A. § 1728 is not for consideration. Emergency care not covered under the provisions of 38 U.S.C.A. § 1728 may qualify for reimbursement under the provisions of 38 U.S.C.A. § 1725 and 38 C.F.R. §§ 17.1000-1003. Section 1725 was enacted as part of the Veterans Millennium Health Care and Benefits Act, Public Law 106-177 ("Millennium Bill Act"). Payment or reimbursement under 38 U.S.C. § 1725 for emergency treatment 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 C.F.R § 17.1002 (2015). The criteria above are conjunctive, not disjunctive; accordingly, all eight criteria must be met. Melson v. Derwinski, 1 Vet. App. 334 (1991). Ambulance records from St. Lucie Fire Department show the Veteran complained to the ambulance crew of cramping to the arms, hand and left abdominal area. He related dehydration from work the previous day and stated he was having an anxiety attack and could not control his breathing. He denied shortness of breath or chest pain and stated he wanted to be taken to Lawnwood Regional Medical Center (RMC) for evaluation. The Veteran was described as being in "minor" distress; his blood pressure was elevated (170/100) and his breathing rapid (24) but vital signs were otherwise within normal limits. The initial impression was anxiety, rule out myocardial infarction (MI). The Veteran was stabilized and transported to Lawnwood RMC; the record states that Lawnwood RMC was the destination chosen due to "family choice." There is no indication in the medical transportation record that the Veteran asked to be taken to a VA facility. Treatment records from Lawnwood RMC show the Veteran was admitted to the emergency room (ER) at 8:49 am complaining, "I got anxious and then started getting cramps and then vomited." The Veteran was shown to be uninsured (Medicaid pending, charity pending and uninsured discount applicable); VA was not listed as a potential payer. The Veteran's chief complaint was left-side abdominal pain, vomiting and anxiety. The abdominal cramping was described as "moderate" in severity, and the Veteran reported having had 16 previous similar episodes. Review of symptoms (ROS) denied shortness of breath or palpitations, and prior medical history was negative for cardiac symptoms. On admission the Veteran appeared to be tachypneic (breathing rapidly) and very anxious but he became calmer after arrival. Physical examination was essentially normal except for tenderness to palpation on the left side of the abdomen. Labs were normal. The Veteran was noted to be diabetic but not insulin compliant. Clinical impression was acute abdominal pain and anxiety. While at Lawnwood RMC the Veteran underwent a behavioral health screen in which he reported a history of anxiety disorder for which he was receiving psychiatric treatment. The Veteran admitted he did not take Xanax as prescribed and stated that the only drug that worked for him is Dilaudid (the Board notes at this point that Xanax is a drug that is prescribed to treat anxiety disorder, while Dilaudid is an opioid pain medication). The Veteran reported being currently under a great deal of stress. The Veteran was not felt to be a risk to himself or others, so psychiatric referral was not indicated. The Veteran was discharged home at 1:07 pm with a prescription for Bentyl, a medication used to treat irritable bowel symptoms. The discharge diagnoses were (1) abdominal pain, unspecified site, and (2) anxiety state not otherwise specified (NOS). There is no indication in the Lawnwood RMC treatment record that the Veteran asked to be transferred to a VA treatment facility. A Report of Contact dated in July 2011 shows the charges were initially denied because the claim was untimely filed (complete charges not submitted within 90 days of treatment). The claim was re-opened in March 2011 and denied for two reasons: (1) non-emergent care and (2) VA facility reasonably available at West Palm Beach (WPB-VA). In his Notice of Disagreement (NOD), dated in June 2011, as well as in his hearing before the Board, the Veteran asserted he tried to drive to the VAMC but the highway (Interstate 95) was blocked due to an ongoing helicopter medical evacuation. He returned home, but his symptoms became worse and he thought he was having a heart attack, so he called an ambulance. He told the ambulance crew that he wanted to be taken to the VAMC, but his request was refused; he also told personnel at Lawnwood RMC that he "was VA." The Veteran's friend Ms. KH submitted a statement in August 2012 asserting that on November 10, 2010, she observed the Veteran to be massaging his left arm and chest area and gulping for air; the Veteran stated he was having a heart attack, so they called an ambulance. The Veteran told the ambulance crew to take him to a VA medical facility but they insisted on taking him to Lawnwood RMC, which was the closest medical facility available. On review of the evidence above the Board notes at the outset that the ambulance record shows the Veteran denied shortness of breath and chest pain when the ambulance arrived; however, the Veteran's subjective complaints and objective symptoms were nonetheless such that the ambulance crew's impression was "rule out MI." The Board concludes that the Veteran's symptoms on November 20, 2010, could have caused a reasonable layperson to believe the situation to be a medical emergency or to think that a delay in seeking immediate attention would be hazardous to life or health. Thus, a qualifying medical emergency is shown. Turning to the question of reasonable availability of a VA medical facility, the Veteran testified that he attempted to drive to the VAMC but was unable to do so; this assertion is not contradicted by any evidence of record. The Veteran's account of having asked the ambulance crew to transport him to VAMC is contrary to the ambulance note, which states that the Veteran was taken to Lawnwood RMC at his own request, but the Veteran's account is supported by the witness statement of Ms. KH; further, the Board cannot ignore the Veteran's testimony, which was made under oath. Moreover, the Board notes that November 20, 2010 was a Saturday, and that the nearest full service VA Medical Center, as opposed to a community based outpatient clinic, was 44 miles away. The Board accordingly finds it is at least as likely as not, given the circumstances described above, that a VA medical facility was not reasonably available to treat the emergency situation at hand. In denying the claim the Agency of Original Jurisdiction (AOJ) pointed out that the Veteran stated to the medical personnel at Lawnwood RMC that only narcotic medication had previously been effective in controlling his symptoms, thereby raising an implication that the Veteran's treatment was motivated by a desire for narcotics. However, the Veteran's statement appears to have been an incidental remark that was made during behavioral health screen. The treatment record from Lawnwood RMC does not suggest that the Veteran actually demanded or requested narcotics. The Board has carefully reviewed the entire electronic VA medical record and finds no indication therein the Veteran's treatment at Lawnwood RMC on the date in question may was a manifestation of drug-seeking behavior. Based on the evidence and analysis above the Board finds the evidence is at least in equipoise in showing that the Veteran's treatment at Lawnwood RMC on November 20, 2010, was the result of an emergency situation for which VA medical facilities were not reasonably available. Accordingly, the requirements for payment of or reimbursement for such treatment have been met, and the appeal is granted. Benefit of reasonable doubt has been resolved in the Veteran's favor. See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015). ORDER Entitlement to payment of or reimbursement for unauthorized emergency medical treatment provided by Lawnwood Regional Medical Center on November 20, 2010, is granted, subject to the rules applicable to payment of monetary benefits. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs