Citation Nr: 18141318 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 16-15 469A DATE: October 10, 2018 ORDER Entitlement to reimbursement for medical expenses incurred as a result of an emergency room visit on May 27, 2012, at MedCenter One, is granted, subject to controlling regulations governing the payment of monetary awards. FINDING OF FACT The Veteran received private emergency treatment on May 27, 2012, that a prudent layperson would have reasonably expected would have been hazardous to life or health if treatment was delayed; no VA emergency facility was feasibly available. CONCLUSION OF LAW The criteria for entitlement to reimbursement for medical expenses incurred as a result of an emergency room visit on May 27, 2012, at MedCenter One, have been met. 38 U.S.C. §§ 1725, 1728 (2012); 38 C.F.R. §§ 17.120, 17.1000-17.1008 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from February 1980 to March 1983. He testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing in October 2018. Entitlement to reimbursement for medical expenses incurred following an emergency room visit on May 27, 2012, at MedCenter One The Veteran is claiming entitlement to payment or reimbursement of private medical expenses incurred as a result of an emergency room visit on May 27, 2012, at MedCenter one. This is a non-VA medical facility. The facts of this case are relatively straight-forward. The Veteran is currently service-connected for hypertension, as well as a panic disorder with agoraphobia. He is totally and permanently disabled as a result of his service-connected disabilities. From May 22, 2012, to May 25, 2012, he was hospitalized for myocardial infarction with one stent placed. At his Board hearing, the Veteran testified that he had previously had stents placed and was aware of the symptoms related to stent failure. He stated that after his surgery, he began to experience extreme fatigue. This is also documented in his June 2012 Bismarck Community Based Outpatient Clinic records. He testified that he knew it felt different, and that he and his wife determined that his condition was emergent when he collapsed to his knees and could barely move on May 27, 2012—just two days after surgery. At the time of the collapse, he testified that the Bismarck CBOC, which is approximately 20 miles from the Veteran’s home, was closed. The Bismarck CBOC is only open from 8am-4:30pm from Monday-Friday. They do not have any weekend hours. The only other VA Medical Center in the state of North Dakota is located in Fargo, which is in excess of three hours from the Veteran’s home (approximately 220 miles). 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. In the instant case, the AOJ acknowledged that the Veteran is considered permanently and totally disabled from a service-connected disability. As such, he satisfies the first criteria for reimbursement under 38 U.S.C. § 1728. Regarding whether the care and services were rendered for a medical emergency, the acknowledges the Veteran’s testimony regarding experiencing abnormal symptoms related to his chest only two days post-surgery. The Agency of Original Jurisdiction (AOJ) denied the Veteran’s claim on the basis that the care received by the Veteran “was not rendered in a medical emergency from a layperson point of view as the Veteran has been clinically counseled about the symptoms he was encountering” previously. As noted above, the Veteran is service-connected for panic disorder with agoraphobia. A review of the VA treatment records does show that the Veteran was counseled regarding chest pain; however, at his hearing, he reported that he was experiencing a profound sense of fatigue, of which he had not previously felt; moreover, the Veteran just underwent heart surgery two days prior. Further, the treatment records from MedCenter show that the Veteran thought his symptoms may have been related to his anxiety, which then prompted him to take his prescribed Xanax. However, the Xanax provided no relief. Having ruled out his anxiety disorder as a possible cause of his fatigue, it was reasonable for the Veteran to think that his symptoms, which continued to worsen, were as a result of his heart surgery two days prior. As such, the Board finds that when reasonable doubt is resolved in favor of the Veteran, his fogginess and profound fatigue, just two days post-operation, were rendered in a medical emergency from a layperson point of view. 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. The CBOC in Bismarck has no weekend hours, and the only available VA medical facility in the state of North Dakota is located in Fargo, which is more than three hours from the Veteran’s home (approximately 220 miles). Given that the Veteran had just underwent surgery, attempted to quell his anxiety through medication, and began to feel so weak that he fell to his knees, the Board finds that a three-hour 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 by MedCenter One on May 27, 2012, under 38 U.S.C. § 1728 is warranted. 38 U.S.C. § 5107(b); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Martha R. Luboch, Associate Counsel