Citation Nr: 18139646 Decision Date: 10/01/18 Archive Date: 09/28/18 DOCKET NO. 16-11 441A DATE: October 1, 2018 ORDER Entitlement to payment or reimbursement of the cost of private medical services received at South Florida Baptist Hospital (SFBH) in Plant City, Florida on September 16, 2015 is denied. FINDING OF FACT The treatment the Veteran received at SFBH was not for a condition that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. CONCLUSION OF LAW The criteria for entitlement to payment or reimbursement of the cost of private medical services received at South Florida Baptist Hospital (SFBH) in Plant City, Florida on September 16, 2015 have not been met. 38 U.S.C. § 1725; 38 C.F.R. § 17.1002 (b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1957 to October 1962. This matter is on appeal before the Board of Veterans Appeals (Board) from a November 2015 decision of the Department of Veterans Affairs Medical Center (VAMC) in Tampa, Florida. The Veteran briefly testified concerning this matter at an October 2017 Board hearing held before the undersigned at the St. Petersburg, Florida Regional Office (RO). This hearing was convened in relation to separate matters, which were addressed in a May 2018 Board decision. Because the Veteran had separately requested a hearing in relation to this matter on his March 2016 Form 9, another Board hearing was scheduled for April 2018. However, the Veteran cancelled the hearing and did not indicate a desire to reschedule. Accordingly, his hearing request is considered withdrawn and the Board will proceed to issue a decision. 1. Entitlement to payment or reimbursement of the cost of private medical services received at South Florida Baptist Hospital (SFBH) in Plant City, Florida The Veteran has claimed payment or reimbursement for the medical services he received at SFBH on September 16, 2015. This treatment was not pre-authorized by VA. See 38 C.F.R. § 17.52(a), generally indicating that VA must authorize non-VA treatment at private facilities. Also, at the time the treatment was provided, the Veteran did not have total and permanent service-connected disability rating, as his total disability rating became effective October 2, 2015. Additionally, the evidence indicates that the medical services received were not for any service-connected disability. In this regard, the Veteran’s service connected disabilities include left lower extremity radiculopathy, residuals of renal calculi, lumbar discogenic disease, duodenal ulcer, tinnitus, deviated septum, sinusitis and bilateral hearing loss. The medical services in question were provided for chills, sweating and weakness, and these symptoms were not found to be associated with any of these service-connected disabilities. See September 16, 2015 SFBH Emergency Department Abstract. The medical services provided were also not for any disability that was aggravating a service-connected disability. Likewise, the services were not for any injury or illness incurred in relation to participation in a vocational rehabilitation program. Consequently, the Veteran is not eligible for payment or reimbursement for the claimed emergency treatment under 38 U.S.C. § 1728. See 38 C.F.R. § 17.120. Nonetheless, payment or reimbursement for private emergency medical treatment may be considered under 38 U.S.C. § 1725. The primary requirements for payment or reimbursement under this statute are that the Veteran is treated in an emergency department or similar facility held out as providing emergency treatment to the public; the treatment received 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; and a VA or federal facility was not feasibly available to provide the treatment. 38 C.F.R. § 17.1002(a-c). The Board notes that all these criteria (along with the additional criteria found at 38 C.F.R. § 17.1002 (d-h)) must be met for payment or reimbursement to be warranted. The evidence shows that the Veteran was taken by ambulance from his home to the SFBH emergency room (ER) in the late afternoon on September 16, 2015. The narrative summary from the ambulance provider indicates that the ambulance personnel arrived at the Veteran’s home to find him sitting upright in a chair wearing several coats. He was found to be cold and diaphoretic (i.e. sweaty). He was complaining of weakness all over his body and stated that he had been very cold over the past 3 days and had been sweating profusely. He had also had experienced frequent episodes of regurgitation. He denied any other abnormalities, pain or discomfort. The Veteran’s vital signs were assessed on the scene and he was found stable for transport. The Veteran’s initial blood pressure was 156/80, his pulse rate was 80 and his respiration rate was 18 (normal). During transport to the SFBH emergency room, he was reassessed with no significant changes. The subsequent September 16, 2015 SFBH ER abstract indicates that the Veteran presented with complaints of feeling ‘cold with chills’ over the past 3 days. The Veteran also indicated that he was sweating at times. He reported that the onset of these symptoms was 3 days before and that the symptoms would come and go. The Veteran indicated that he was not experiencing any pain. Additionally, the Veteran reported that he had taken his temperature a number of times but never found that he had a fever. The Veteran noted that he had been admitted to the VA hospital a couple of days before and had just been discharged earlier on September 16, 2015. He also noted that prior to admission to the VA hospital, he was supposed to have undergone dental surgery but he was found to be ‘pale’ and was thus was taken to the VA hospital for treatment. The Veteran reported that VA medical personnel did not find anything wrong with him during the hospitalization and as a result, he was discharged. Review of symptoms at the SFBH ER showed chills and sweats with no fever or other significant symptoms. Physical examination was unremarkable with no sweating noted. Laboratory, cardiac and radiological testing was performed without any significant findings. After a few hours at the ER, the Veteran reported that he was feeling better. He had not experienced any sweating at the ER and although he felt a little cold, he did not have a fever. Consequently, he was discharged home. The above summarized evidence shows that the Veteran was treated at an emergency department (i.e. the SFBH ER). However, it does not show that the treatment was 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. Clearly, the Veteran was experiencing discomfort in the form of having chills, feeling cold and having intermittent sweating, symptoms consistent to those reported when seeking VA treatment immediately prior to the ER visit. However, in the absence of other significant symptoms, including a fever or significant pain, a prudent layperson who possesses an average knowledge of health and medicine would not reasonably expect the absence of immediate medical attention would result in placing the health of the Veteran in serious jeopardy; serious impairment to bodily functions; or serious dysfunction of any bodily organ or part. In this regard, given that the Veteran’s symptoms were not more acute, a prudent course of action for an individual who possesses an average knowledge of health and medicine would have been to first attempt to manage his condition at home while also seeking medical help and/or advice from his outpatient treatment team. Then, if his symptoms subsequently got worse, it would have been prudent to seek emergency treatment. The Board empathizes with the situation faced by the Veteran on September 16, 2015 as it evident that he was continuing to feel quite poorly and was simply seeking to obtain medical care to relieve his symptoms. However, the Board is bound to follow the controlling regulations. Given that a prudent layperson would not have reasonably expected that a delay in seeking immediate medical attention on the afternoon of September 16, 2015 would have been hazardous to life or health, the Board is not able to grant payment or reimbursement for the medical services received at SFBH on this date. 38 C.F.R. § 17.1002(b). Accordingly, the Board must deny the Veteran’s claim. K.A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Dan Brook, Counsel