Citation Nr: 1751445 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 13-33 026 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) North Florida/South Georgia Veterans Health System (NF/SGVHS) in Gainesville, Florida THE ISSUE Entitlement to payment or reimbursement for medical expenses incurred at Memorial Hospital Jacksonville, in Jacksonville, Florida, on June 14, 2013. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served from October 1966 to July 1969. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2013 denial of a claim for payment or reimbursement of expenses incurred at a private facility by the VA NF/SGVHS in Gainesville, Florida. The Veteran filed a notice of disagreement (NOD) in August 2013. That same month, the agency of original jurisdiction (AOJ) (the VA NF/SGVHS in Gainesville, Florida) again reviewed the Veteran's claim, but upheld the original denials A statement of the case (SOC) was issued in October 2013, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) that same month. On his VA Form 9, the Veteran checked the box indicating his desire to testify at a Board videoconference hearing. In a June 2015 action, the Board remanded the current matter for the Veteran to be scheduled for a Board hearing. In June 2016, the Veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. The Board notes that, in addition to the Veteran's paper medical file, there are separate, paperless, electronic files associated with the Veteran' claims, located in both the Veterans Benefits Management System (VBMS) file and Virtual VA (Legacy Content Manager) claims processing systems. All records have been reviewed. Lastly, the Board notes that in a separate June 2015 action, the Board remanded for issuance of an SOC the issues of entitlement to service connection for right and left hip disabilities and entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). SOCs addressing these matters were issued in October 2016 and the Veteran filed a substantive appeal (via two VA Form 9s, Appeal to the Board of Veterans' Appeals) in December 2016. On those VA Form 9s (Appeal to the Board of Veterans' Appeals), the Veteran requested Board video-conference hearings. Those matters were then certified for appeal to the Board in December 2016. Although those claims have been certified to the Board for appeal, the appeal as to these matters has not yet been received at the Board. In this regard, the Board notes that it will not activate and docket new appeals with pending hearing requests, unless the matter is inextricably intertwined with an already active appeal that is at the Board, because doing so would result in further delaying the Veteran's hearing request. The Board does not find these matters to be inextricably intertwined with the issue of payment or reimbursement of expenses incurred at a private facility by the VA NF/SGVHS in Gainesville, Florida, that is currently before the Board and as such, the claims for service connection for right and left hip disabilities and for a TDIU are not presently before the Board for its consideration. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim on appeal have been accomplished. 2. The Veteran received emergency medical treatment on June 14, 2013, at Memorial Hospital Jacksonville, in Jacksonville, Florida, related to radiating chest pain. 3. The services provided by Memorial Hospital Jacksonville were not authorized in advance by VA. 4. The Veteran's symptoms at the time he presented at Memorial Hospital Jacksonville on June 14, 2013, were such that a prudent layperson would have reasonably viewed the visit as an emergency or thought that a delay in seeking immediate attention would have been hazardous to life or health. 5. VA treatment facilities were not reasonably available for treatment of the symptoms. 6. The Veteran met all remaining criteria for reimbursement under 38 U.S.C. § 1725. CONCLUSION OF LAW The criteria for payment of reimbursement of unauthorized medical expenses incurred in connection with treatment provided on June 14, 2013, at Jacksonville Memorial Hospital, in Jacksonville, Florida are met. 38 U.S.C. §§ 1725, 5107 (West 2014); 38 C.F.R. §§ 3.102, 17.1001, 17.1002 (2017) REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran is claiming entitlement to payment or reimbursement of private medical expenses incurred on June 14, 2013, for treatment at a non-VA medical facility. The evidence shows, in relevant part, that on June 14, 2013, the Veteran presented to the emergency room of Memorial Hospital Jacksonville, in Jacksonville, Nebraska, at 4:45 a.m. with chest pain. The Veteran reported that his chest pain had begun the day prior, was steady and tight, and radiated into his left arm. He stated that he took Nitroglycerin, which provided little relief, and that his chest pain worsened during the night, causing him to seek medical treatment. During his 2016 Board hearing, the Veteran reported having been told by his cardiologist that should chest pain occur, the Veteran should seek emergency treatment at the nearest facility available. The Veteran was given a chest x-ray, electrocardiogram, and a quantitative troponin test, as well as a variety of other laboratory tests. Pneumonia and pneumothorax were ruled out, but the treating emergency room physician recommended hospital admission to further assess the Veteran's cardiac condition. Although the Veteran initially agreed to admission, he later refused admission, against medical advice, after his wife was consulted. Treatment notes indicate that the treating physician had discussed at length with the Veteran the need to further testing, the risk of serious bodily harm, injury or death if he left the hospital against medical advice, and the Veteran's multiple risk factors. VA treatment records show that the Veteran then did follow-up with his VA cardiologist and that the assessment was atypical chest pain, of possible gastrointestinal etiology. Treatment notes also indicate that the Veteran had a history of myocardial infarction and that he was informed that should he experience recurrent chest pain, he should present to an emergency medical facility. Initially, the Board notes that 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. § 1703(a) (West 2012); 38 C.F.R. § 17.52 (a) (2017). However, the Veteran has never contended, and the evidence does not demonstrate, that he received prior VA written authorization for his private emergency room treatment on June 14, 2013. Therefore, 38 U.S.C.A. § 1703 (a) does not apply in this case. As provided for in 38 U.S.C. § 1725 and 38 U.S.C. § 1728, when a veteran receives treatment at a non-VA facility without prior authorization, VA must reimburse the veteran for the reasonable value of emergency treatment furnished in a non-VA facility, or in lieu of that, make payment directly to a hospital or other health care provider that furnished such treatment on behalf of the veteran under the authority so long as certain statutory and regulatory requirements are met. In this case, the VAMC adjudicated the Veteran's right to payment of reimbursement of unauthorized medical expenses under the provisions of 38 U.S.C. § 1725. At the outset, the Board notes that to be eligible for payment or reimbursement under 38 U.S.C. § 1725, a veteran must not be eligible for reimbursement under 38 U.S.C. § 1728. Accordingly, although not addressed by the AOJ, the Board must first determine whether eligibility for payment or reimbursement exists under 38 U.S.C. § 1728. In general, to establish eligibility for payment or reimbursement of medical expenses incurred at a non-VA facility under 38 U.S.C. § 1728, there must be a showing that: (a) Care or services not previously authorized were rendered to a veteran in need of such care of services: (1) For an adjudicated service-connected disability. (2) For a nonservice-connected disability associated with and held to be aggravating an adjudicated service-connected disability. (3) For any disability of a veteran who has a total disability permanent in nature resulting from a service-connected disability. (4) For any injury, illness, or dental condition in the case of a veteran who -- (A) is participating in a rehabilitation program under 38 U.S.C.[A.] ch[apter] 31 and who is medically determined to be in need of hospital care or medical services for reasons set forth in 38 C.F.R. § 17.48(j); and (b) Care and services not previously authorized were rendered in a medical emergency of such nature that delay would have been hazardous to life or health, and (c) 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. § 1728. 38 C.F.R. § 17.120 (2017); see Zimick v. West, 11 Vet. App. 45, 49 (1998). Failure to satisfy any of the three criteria listed above precludes VA from paying unauthorized medical expenses incurred at a private facility. Zimick, 11 Vet. App. at 49; see Malone v. Gober, 10 Vet. App. 539, 542 (1997). In the instant case, the Veteran is service-connected for coronary artery disease, status post myocardial infarction, posttraumatic stress disorder (PTSD), tinnitus, and bilateral hearing loss; the combined rating is 80 percent. Although the Veteran was treated for chest pain, the evidence does not indicate that the chest pain for which he was treated on June 14, 2013, was related to the Veteran's service-connected coronary artery disease. Thus, the Board cannot conclude that the Veteran's June 14, 2013, treatment was for a service-connected disability. There is also no suggestion, nor does the Veteran so contend, that the services provided to the Veteran at Memorial Hospital Jacksonville on June 14, 2013, were for a nonservice-connected disability associated with and held to be aggravating an adjudicated service-connected disability. Furthermore, the Veteran is not considered to be totally disabled. Moreover, there is no indication that the Veteran is participating in a rehabilitation program. In this regard, the Board notes that the 38 U.S.C. § 1728 criteria are conjunctive, not disjunctive; thus all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334, 337 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). Accordingly, because the Veteran does not meet the criteria set forth in 38 U.S.C. § 1728(a), there is no legal basis under section 1728 for recovery of any of the private medical expenses the Veteran incurred at Memorial Hospital Jacksonville on June 14, 2013, Turning to whether payment or reimbursement of the private medical expense is warranted under the provisions of 38 U.S.C. § 1725, the Board notes that to be eligible for payment by VA for services rendered for a nonservice-connected condition in a non-VA facility under 38 U.S.C. § 1725 and 38 C.F.R. §§ 17.1000-1008, the treatment must satisfy all of the following conditions: (a) The emergency services were provided in a hospital emergency department or a similar facility providing emergency care; (b) 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; (c) A VA or other Federal facility was not feasibly available and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson; (d) The Veteran was enrolled in the VA health care system at the time the emergency treatment was furnished and had received medical services under 38 U.S.C. Chapter 17 within two years before the non-VA emergency treatment; (e) The Veteran is financially liable to the non-VA provider of the emergency treatment; (f) The Veteran has no health insurance coverage for payment or reimbursement for the emergency treatment; (g) The Veteran has unsuccessfully exhausted claims reasonably available against a third party in the case of an accident or work-related injury; and (h) The Veteran is not eligible for reimbursement under 38 U.S.C.A § 1728, which applies primarily to emergency treatment for a service-connected disability. See 38 C.F.R. § 17.1002 (2017). At the outset, the Board notes that a review of the relevant evidence demonstrates that the Veteran meets many of the substantive and administrative criteria for payment or reimbursement of nonservice-connected medical care listed under 38 U.S.C. § 1725 and 38 C.F.R. § 17.1002. Specifically, there is no question that the emergency services rendered on June 14, 2013, were provided in a hospital emergency department or a similar facility providing emergency care. The records also demonstrates that the Veteran was enrolled in the VA health care system at the time the emergency treatment was furnished and had received medical services under 38 U.S.C. Chapter 17 within two years before the non-VA emergency treatment. It is also clear from the evidence that the Veteran is financially liable to the non-VA provider of the emergency treatment and that the Veteran has no health insurance coverage for payment or reimbursement tor the emergency treatment. Further, there is no indication that this case involves an accident or work-related injury. Finally, as determined herein, the Veteran is not eligible for reimbursement under 38 U.S.C. § 1728. Thus, the only question at issue are whether 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 whether a VA or other Federal facility was not feasibly available and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson. Regarding whether the care and services were rendered for a medical emergency, the Board notes that, as defined by regulation, the "medical emergency" standard is met when there is 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. § 17.1002(b). Medical evidence is not necessary to establish the existence of an emergency on admission under the prudent layperson standard. Swinney v. Shinseki, 23 Vet. App. 257 (2009). In this instance case, the Veteran presented to the emergency room at 4:45 a.m., with complaints of chest pain. He has reported that his chest pain had existed for some time, but was not relieved with medication and had worsened throughout the night. It was also noted that the Veteran's chest pain had radiated to his left arm. Further, the Veteran has stated that he was informed by his cardiologist to seek medical treatment if he experienced chest pain. The same advice is recorded in his VA treatment records when he was seen for follow-up after the incident in question. Furthermore, it was recommended that the Veteran be admitted to the hospital for further testing, which would indicate to the Board that the treating emergency physician felt that the Veteran symptoms may have been the sign of a serious health condition. Under the circumstances present at the time the veteran sought treatment at the private facility, a prudent layperson would reasonably expect that his/her condition was such that delay in seeking treatment would be hazardous to her health or life. 38 C.F.R. § 17.120(b); see Swinney v. Shinseki, 23 Vet. App. 257, 264-65 (2009). Here, in light of the Veteran's reported symptoms, the fact that the Veteran was previously instructed to seek immediate medical attention if he experienced increased chest pain, the fact that his symptoms were serious enough to cause him to seek emergency medical treatment in the middle of the night, and the fact that the treating physician deemed the Veteran's symptoms serious enough to recommend hospital admission, the Board concludes that at the time the Veteran sought treatment at the private facility on June 14, 2013, a prudent layperson would reasonably expect that delay in seeking treatment would be hazardous to health or life. With respect to the matter of whether a VA facility was feasibly available for care, the Board finds that a VA facility was not feasible in such an emergent circumstance. At the time of the June 14, 2013, treatment, the Veteran was living in Jacksonville, Florida. Memorial Hospital Jacksonville was less than 4 miles away from the Veteran's then-residence, whereas the closest VA facility that would have been open at that time and equipped to provide emergency care was in either Gainesville, Florida, or Lake City, Florida, both of which are more than 70 miles and well over an hour drive from the Veteran's then-residence in Jacksonville. See https://www.va.gov/directory/guide/state.asp?State=FL; http://www.mapquest.com; see generally Smith (Brady) v. Derwinski, 1 Vet. App. 235, 238 (1991) (Courts may take judicial notice of facts not subject to reasonable dispute). Given the perceived emergent nature of the situation and the 70+ mile drive to the closest available VA medical facility, the Board finds that a VA facility could not be considered a reasonable option for the Veteran's medical needs. Accordingly, the Board finds that the Veteran has met the criteria of 38 C.F.R. § 17.1002(b) and (c). For the foregoing reasons, the Board finds that when reasonable doubt is resolved in the Veteran's favor, payment or reimbursement of medical expenses incurred in connection with treatment provided at Memorial Hospital Jacksonville on June 14, 2013, is warranted under 38 U.S.C.A. § 1725. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER The claim for payment or reimbursement of medical expenses incurred in connection with unauthorized treatment rendered at Memorial Hospital Jacksonville on June 14, 2013, is granted, subject to the legal authority governing the payment of monetary awards. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs