Citation Nr: 1804073 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-10 690A ) DATE ) ) On appeal from the Department of Veterans Affairs, North Florida/South Georgia Department of Veterans Affairs Medical Center (VAMC) THE ISSUE Entitlement to reimbursement of unauthorized medical expenses incurred on November 3, 2013 at Munroe Regional Medical Center (MC). REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD Cheryl E. Handy, Counsel INTRODUCTION The Veteran served on active duty from March 2002 to September 2004, to include service in Southwest Asia. This matter is before the Board of Veterans' Appeals (Board) on appeal of a decision issued in December 2013 by the North Florida/South Georgia Veterans Health Systems of the Department of Veterans Affairs (VA). FINDING OF FACT On November 3, 2013, the Veteran received unauthorized emergency room medical care at a non-VA hospital; the treated condition was not one that a prudent layperson in the circumstances would expect to be hazardous to health if medical attention was delayed. CONCLUSION OF LAW The criteria for reimbursement of unauthorized medical services provided to the Veteran on November 3, 2013 at a non-VA facility have not been met. 38 U.S.C. §§ 1703, 1725, 1728, 5107 (2012); 38 C.F.R. §§ 3.102, 17.54, 17.120-21, 17.1000-08 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist The Veteran was notified by the VAMC in March 2014 of VA's legal duties to notify and assist him in pursuing his claim. The record reflects that in its decision the VAMC explained to the Veteran the basis for finding that the medical expenses incurred could not be paid or reimbursed by VA. In addition, the Veteran has been afforded the opportunity to present information and evidence in support of his claim throughout the course of the appeal. With respect to VA's duty to assist, the VAMC obtained all of the medical records associated with his unauthorized treatment. He has not identified any other treatment records aside from those that are already of record. Thus, VA has made every reasonable effort to obtain all records relevant to the Veteran's claim. To the extent that there are any deficiencies in VA's efforts to fulfill its notice and assistance requirements with respect to this appeal, the Board finds no prejudice, as the law and not the evidence is dispositive of the Veteran's claim. See Beverly v. Nicholson, 19 Vet. App. 394, 403-04 (2005). Reimbursement of Unauthorized Medical Expenses The Veteran claims reimbursement for expenses incurred when he sought care at the emergency room at Munroe Regional Medical Center for complaints of nausea, diarrhea, and a stiff neck on November 3, 2013. Under 38 U.S.C.A. § 1725, a veteran may be eligible for reimbursement provided that he is (1) an active participant in VA health care and (2) is personally liable for the emergency treatment furnished. A veteran is an active participant in VA health care if: (1) he is enrolled in the VA health care system; and (2) he received VA health care within the 24-month period preceding the unauthorized emergency treatment. A veteran is personally liable for the emergency treatment furnished if: (1) he is financially liable to the provider of the emergency treatment for that treatment; (2) he has no entitlement to care or services under a health-plan contract; (3) he has no other contractual or legal recourse against a third party that would, in whole, extinguish such liability to the provider; and (4) he is not eligible for reimbursement for medical care under 38 U.S.C. § 1728. The implementing regulations elaborate on the conditions for payment or reimbursement, including that: (1) emergency services were provided in a hospital emergency department or similar facility, (2) the nature of the treated condition is one that a prudent layperson would have reasonably expected to be hazardous to health if there was a delay in medical attention (i.e., emergent), and (3) 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. See 38 C.F.R. § 17.1002. When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107. Based on a review of all of the evidence of record, to include that discussed below, the Board finds that the criteria for reimbursement of medical expenses incurred by the Veteran for emergency room care at Munroe Regional Medical Center on November 3, 2013 have not been met. Initially, the Board notes that the Veteran is service-connected for posttraumatic stress disorder (PTSD) and for osteoarthritis of the left knee. There is no evidence or contention that the Veteran's emergency room treatment on November 3, 2003, was in any way connected with either of his service-connected disabilities and would be eligible for reimbursement as a result under 38 U.S.C. § 1728. In light of this, the Board will turn to eligibility under 38 U.S.C. § 1725. The record shows that the Veteran qualified as an active participant in VA health care, because he had been receiving care at the VA facility in Ocala, Florida, including care beginning in April 2013 for leukocytosis (elevated white blood cell count). He had last been seen at the facility in late October 2013. The record also shows that he was personally liable for the emergency room treatment furnished. As such, reimbursement of the treatment costs would be possible if the required elements are met. In this case, the Veteran received emergency services from a hospital emergency department, namely, the Munroe Regional Medical Center in Ocala, Florida. The question before the Board, and the basis for the initial denial of reimbursement by VA, is whether the nature of the condition was one that a prudent layperson would have reasonably expected to be hazardous to health if there was a delay in medical attention. Also of consideration is the question of whether a VA or other federal facility was feasibly available and an attempt to use such a facility beforehand would not have been considered reasonable by a prudent layperson. Here, the private treatment records show that the Veteran presented to the Munroe Regional Medical Center emergency room on November 3, 2013, for complaints of nausea and diarrhea and stiffness in his neck which had begun about two weeks prior. The record shows that the Veteran walked in to the emergency room; he was not transported by ambulance or escorted by emergency medical technicians. He reported a mild fever, general weakness, and night sweats for the previous week. He had been seen at a walk-in clinic a few days prior and his blood tests had showed leukocytosis, with no source of infection. He reported that he had experienced leukocytosis in the past and his wife stated that he had experienced the current symptoms on three prior occasions. He did not have any chest pains or significant respiratory distress or any neurological symptoms. He was discharged from the emergency room and sent home several hours later, after receiving antibiotics and saline intravenous fluid, with instructions to seek care from his regular physician within the next three to five days. This evidence does not demonstrate that the condition for which the Veteran received emergency room treatment was one that a prudent layperson would have reasonably expected to be hazardous to health if there was a delay in medical attention. Indeed, based on the history provided at the time of the treatment, the Veteran had been experiencing the same symptoms for at least a week prior to seeking treatment at the emergency room. He had visited his provider at VA during the two week period of symptoms described to the emergency room doctor, and had missed an appointment at VA during that time as well. Further, the description of symptoms in the emergency room records do not suggest a situation requiring immediate treatment, such that he could not await treatment at a VA facility. He did not have any problems breathing, did not have chest pain, and did not report any neurological symptoms; he was also able to travel to the hospital on his own. The Board finds that the fact that he was discharged home with instructions to visit his doctor within five days is also weighs against a finding that the Veteran's condition was not of extreme urgency. The Board notes the Veteran's statements in his February 2014 Notice of Disagreement regarding his symptoms. He said that he was "very ill" and "had no choice but to go to the emergency room" and that he had been told by VA to go to a regular hospital if he had a "severe emergency." He stated that he was in bed for four days, had a high white blood cell count with no clear infection, that he had fever, diarrhea, nausea, sweats, and could not eat. He said he had even lost his job because of missing work for so many days. He was unable to make the drive to Gainesville where the VA Medical Center is located. Again, the Board notes that the Veteran's symptoms as described to the emergency room providers did not include diarrhea or lack of appetite. He was being monitored by the VA facility for his high white blood cell count, and had been advised it was likely due to his cigarette smoking. The Board finds that the weight of the evidence does not support a situation in which a prudent layperson would have felt would have been hazardous to his health if he delayed treatment. Finally, the Board notes that the criteria require that a VA or other federal facility not have been feasibly available and an attempt to use such a facility would not been considered reasonable by a layperson. The Veteran stated that he was not well enough to make the drive to Gainesville, which is shown to be about 50 miles from the Veteran's home. However, the Board does not find this to be an unreasonable distance where the Veteran was not shown to be experiencing loss of consciousness, shortness of breath, chest pain, neurological symptoms, or any other symptoms of a severity to require transportation by ambulance. For all of the reasons set forth above, the Board finds that the Veteran is not entitled to reimbursement of medical expenses for emergency treatment received on November 3, 2013, and the claim is denied. 38 C.F.R. § 17.1002. ORDER Payment or reimbursement of unauthorized emergency room services on November 3, 2013 is denied. ______________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs