Citation Nr: 1802753 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 10-24 006 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Canandaigua, New York THE ISSUE Entitlement to payment or reimbursement of private medical expenses incurred from January 15, 2010, to January 19, 2010, at Glens Falls Hospital in Glen Falls, New York. REPRESENTATION Appellant represented by: New York State Division of Veterans Affairs ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served on active duty from October 1967 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 denial of a claim for payment or reimbursement of expenses incurred at a private facility by the VA Medical Center (VAMC) in Albany, New York. Jurisdiction of the case was subsequently transferred to the VAMC in Canandaigua, New York. The instant matter was previously before the Board in May 2015, at which time it was remanded for further development. Upon completion of that development, the agency of original jurisdiction (AOJ) issued a September 2017 supplemental statement of the case (SSOC) wherein it continued to deny the claim. The matter was thereafter returned to the Board. FINDINGS OF FACT 1. The Veteran has been in receipt of a 100 percent disability rating since December 2002. 2. The Veteran received medical treatment from January 15, 2010, to January 19, 2010, at Glen Falls Hospital related to progressive and worsening symptoms of vomiting, nausea, dizziness, and diarrhea, which symptoms led to dehydration and required several diagnostic tests to determine underlying cause. 3. The services provided by Glen Falls Hospital were not authorized in advance by VA. 4. The Veteran's symptoms at the time he presented at Glen Falls Hospital on January 15, 2010, 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. CONCLUSION OF LAW The criteria for payment of reimbursement of unauthorized medical expenses incurred in connection with treatment provided on May 5, 2009, at Florida Hospital Waterman have been met. 38 U.S.C. § 1728 (2012); 38 C.F.R. §§ 17.53, 17.54, 17.120, 17.130 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran is claiming entitlement to payment or reimbursement of private medical expenses incurred from January 15, 2010, to January 19, 2010, for treatment at a non-VA medical facility. The evidence shows, in relevant part, that on January 12, 2010, the Veteran to the VA community based outpatient clinician (CBOC) in Glen Falls, New York, at which time he complained of dizziness, daily vomiting, and six to seven episodes of watery stools per day. He further reported being unable to eat. The assessment was gastroenteritis with a differential diagnosis of pancreatitis. Then, on January 15, 2010, the Veteran presented to the emergency room of Great Falls Hospital, a private, non-VA, medical facility located in Great Falls, New York, with complaints of dizziness, nausea, vomiting, and diarrhea for five days. He reported that he had become progressively weak and was having trouble ambulating at home. It was noted that due to the persistent and worsening nature of symptoms, the Veteran had felt it necessary to seek emergency treatment. The records also show that the Veteran was admitted to Glen Falls Hospital, with an initial impression of infectious diarrhea with dehydration, acute renal failure, hypokalemia, chronic hepatitis C, and gastroesophageal reflux disease (GERD). Over the course of his five day admission, the Veteran was treated with intravenous fluid, underwent small bowel biopsies, had chest and abdominal x-rays and abdominal and pelvic computed tomography scans, and underwent an endoscopy. The Veteran was discharged from the hospital on January 19, 2010, with instructions to follow-up with the VAMC in one to two weeks. 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, and thus 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. 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 AOJ acknowledged that the Veteran is considered permanently and totally disabled from a service-connected disability. Indeed, the Veteran has been in receipt of a 100 percent disability rating for posttraumatic stress disorder (PTSD) since December 2002, he satisfies the first criteria for reimbursement under 38 U.S.C.A. § 1728. Regarding whether the care and services were rendered for a medical emergency, the Board notes that it would appear as though the AOJ has conceded that the Veteran's treatment at the non-VA facility from January 10 to 19, 2010, was for a medical emergency, as the claim was initially denied only on that basis that VA facilities were feasibly available. Further, given the nature of the Veteran's symptoms as described by him and the fact that the Veteran was admitted to the hospital for five days and underwent a variety of diagnostic tests and procedures during this time, the Board finds that when reasonable doubt is resolved in favor of the Veteran, his progressive and worsening symptoms of vomiting, diarrhea, and dizziness qualifies as an emergent situation that a layperson would find life threatening to not seek out immediate care. Thus, the Board finds that the Veteran satisfies the second criteria for reimbursement under 38 U.S.C. § 1728. With respect to whether a VA facility was feasibly available for care, the Board finds that a VA facility was not feasible in such an emergent circumstance. Although a VA facility exists in Glen Falls, New York, and is located in close proximity to Glen Falls Hospital, the VA facility is a CBOC, which is not equipped to provide emergency services. See https://www.albany.va.gov/locations/glen.asp (providing that specialty services beyond primary care are not available at the Glan Falls CBOC). Further, the Veteran had presented to the Glen Falls CBOC three days prior to his presentation to the non-VA emergency department for treatment of the same symptoms. Thus, it is reasonable to assume that the Veteran was aware of the type of treatment and care that could be rendered at the CBOC and given that his symptoms had worsened since that initial treatment, would have assumed that more extensive treatment might be necessary. The Board also notes that the VAMC in Albany, New York, has an emergency department; however, that facility in nearly 60 miles away from Glen Falls, where the Veteran resides. See Smith v. Derwinski, 1 Vet.App. 235, 238 (1991) ("Courts may take judicial notice of facts not subject to reasonable dispute." (citing FED. R. EVID. 201(b))). Given the Veteran's symptoms, to especially include dizziness and difficulty ambulating, the Board finds that the 60 mile drive to the closest VA medical facility equipped to provide emergency medical services could not be considered a reasonable option for the Veteran's medical needs. Overall, 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 from January 15, 2010, to January 19, 2010, at Glen Falls Hospital under 38 U.S.C.A. § 1728 is warranted. 38 U.S.C.A. § 5107(b); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Payment or reimbursement of unauthorized medical expenses incurred in connection with treatment provided at Glen Falls Hospital from January 15, 2010, to January 19, 2010, is granted, subject to controlling regulations governing the payment of monetary awards. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs