Citation Nr: 18144889 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 16-13 723 DATE: October 25, 2018 ORDER Payment or reimbursement for unauthorized medical expenses incurred on February 9, 2015, at Sarasota Memorial Hospital (SMH) is granted. FINDING OF FACT On February 9, 2015, the Veteran’s medical condition was 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 that VA facilities were not feasibly available to her. CONCLUSION OF LAW The criteria for payment or reimbursement for unauthorized medical expenses incurred on February 9, 2015, at SMH are met. 38 U.S.C. §§ 1703, 1725, 1728, 5107; 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120, 17.121, 17.1002. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from January 1987 to May 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 letter of determination by a Department of Veterans Affairs (VA) Medical Center. On February 9, 2015, the Veteran presented at SMH’s emergency department for complaints of extremity pain and swelling. The Veteran was noted to have a history of deep venous thrombophlebitis (DVT) and was taking Coumadin. She reported recently developing pain and swelling of the right ankle and calf, without any associated symptoms. She was concerned at that time that she may have another DVT, although her last INR was 2.3. The nurse noted that the onset was 2 months ago, that it was still present in the right leg, and was of mild to moderate severity. The Veteran had an ultrasound of the right leg which revealed no acute disease. She was discharged home with instructions to follow-up with her doctor; she was discharged with a diagnosis of right ankle pain and swelling. The Board reflects that SMH is approximately 4 miles and a 10-minute drive from the Veteran’s home. The closest VA facility was Bay Pines VA Medical Center, which is approximately 50 miles and an hour drive from the Veteran’s home. The VA Medical Center denied the claim in the June 2015 letter of determination, stating that VA facilities were feasibly available to the Veteran. Additionally, in the October 2015 statement of the case, the VA Medical Center found that the Veteran’s condition was non-emergent, noting that she had onset of the condition 2 months prior and that imaging did not reveal any evidence of DVT during treatment on February 9, 2015. “Presentation [was] non-emergent (symptoms [for] 2 months). Therefore [the] claim is denied since VA facilities were available and the [Chief Medical Officer] did not feel the episode of care was of an emergent nature that a delay in seeking help would not have been hazardous to life or health.” The Board reflects that there is no medical opinion on file from the Chief Medical Officer reflecting the noted findings. On appeal, the Veteran stated in her August 2015 notice of disagreement that she went to the emergency room on February 9, 2015 with complaints of symptoms of DVT in her right leg and that she had a history of DVT, with at least two incidences of hospitalization for DVT in 2005 and 2010. She further stated that she was experiencing pitting ankle edema, slight warmth, and a constant throbbing ache on February 9, 2015, which had been intermittently bothering her for a couple of months but was progressively getting worse. She stated that she “seriously thought [she] had another clot. [She] could not find a ride to Bay Pines. [She] did not know what else to do but go to SMH.” She further indicated that she was a nurse for 27 years. In her January 2016 substantive appeal, VA Form 9, she stated that she had signs and symptoms of DVT for 2 months which were progressively getting worse and she was told by her VA vascular surgeon on February 9, 2015, to go to the closest emergency room. She noted that Bay Pines VA Medical Center was 42 miles from where she lived and that her doctor told her to go to the closest emergency room, which in this case was SMH. She stated that if it had been a DVT, it would have been an emergency; she noted that although after testing no DVT was found, she did not know that when she arrived at SMH and that it “was still an emergency.” She further stated that she was a nurse. Finally, she submitted a January 2016 letter from her VA vascular surgeon, Dr. G.S.J., in support of her claim. Dr. G.S.J. stated as follows: The [Veteran] has a prior history of [DVT] managed with Coumadin. On February 9, 2015, she developed right leg pain and swelling consistent with her previous bouts of DVT. According in keeping with the tenets of standard care she advisedly reported to her closest emergency room [SMH] for evaluation and management. In my medical opinion this was the appropriate action. It is medically contraindicated for a patent with suspected DVT to carry herself the distance from her Sarasota domicile to the [Bay Pines] VA [Medical Center] emergency room. It seems to me that had [the Veteran] been instructed to travel that distance rather than report to her closest emergency room she would have stood the risk of suffering potential[ly] fatal complications had she had a DVT. Based on the foregoing evidence, the Board finds that payment or reimbursement for medical expenses incurred on February 9, 2015, at SMH is warranted. As an initial matter, the Veteran has not contended that she had any prior authorization in this case. Thus, 38 U.S.C. § 1703(a) does not apply in this case. Next, the Board notes that on February 9, 2015, service connection had already been established for the Veteran’s bilateral hearing loss, tinnitus, rhinitis, and benign neoplasms of the skin, with a total combined disability evaluation of 20 percent disabling. Although the Board is unable to determine whether the skin disabilities are related to DVT of the right leg, in light of the following award of benefits under 38 U.S.C. § 1725, the Board finds that such issue is of no consequence in this case. Accordingly, as the treatment on February 9, 2015, does not appear to have been for a service-connected disability or for a condition that was aggravating a service-connected disability, she was not shown to have a permanent and total service-connected disability, and her treatment was not for any injury or illness contracted in the course of a rehabilitative program, the Board finds that the Veteran is not eligible for payment or reimbursement under 38 U.S.C. § 1728 in this case. See 38 C.F.R. § 17.120. Nonetheless, the Veterans Millennium Health Care and Benefits Act also provides general authority for reimbursement for the reasonable value of emergency treatment furnished in a non-VA facility to those Veterans who are active VA health-care participants (i.e., enrolled in the annual patient enrollment system and recipients of a VA hospital, nursing home, or domiciliary care under such system within the last 24-month period) and who are personally liable for such non-VA treatment and not eligible for reimbursement under the provisions of 38 U.S.C. § 1728. 38 U.S.C. § 1725; 38 C.F.R. §§ 17.1000-1008. Payment or reimbursement under 38 U.S.C. § 1725 for emergency treatment (including medical services, professional services, ambulance services, ancillary care and medication (including a short course of medication related to and necessary for the treatment of the emergency condition that is provided directly to or prescribed for the patient for use after the emergency condition is stabilized and the patient is discharged)) will be made only if all of the following conditions are met: (a) The emergency services were provided in a hospital emergency department or a similar facility held out as providing emergency care to the public; (b) The claim for payment or reimbursement for the initial evaluation and treatment 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 (this standard would be met if there were 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); (c) A VA or other Federal facility/provider that VA has an agreement with to furnish health care services for veterans was not feasibly available and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson (as an example, these conditions would be met by evidence establishing that a veteran was brought to a hospital in an ambulance and the ambulance personnel determined the nearest available appropriate level of care was at a non-VA medical center); (d) At the time the emergency treatment was furnished, the veteran was enrolled in the VA health care system and had received medical services under authority of 38 U.S.C. chapter 17 within the 24-month period preceding the furnishing of such emergency treatment; (e) The veteran is financially liable to the provider of emergency treatment for that treatment; (f) The veteran does not have coverage under a health-plan contract that would fully extinguish the medical liability for the emergency treatment (this condition cannot be met if the veteran has coverage under a health-plan contract but payment is barred because of a failure by the veteran or the provider to comply with the provisions of that health-plan contract, e.g., failure to submit a bill or medical records within specified time limits, or failure to exhaust appeals of the denial of payment); (g) If the condition for which the emergency treatment was furnished was caused by an accident or work-related injury, the claimant has exhausted without success all claims and remedies reasonably available to the veteran or provider against a third party for payment of such treatment; and the veteran has no contractual or legal recourse against a third party that could reasonably be pursued for the purpose of extinguishing, in whole, the veteran’s liability to the provider; and (h) The veteran is not eligible for reimbursement under 38 U.S.C. § 1728 for the emergency treatment provided. 38 C.F.R. § 17.1002. The existence of a VA facility does not in and of itself mean that the VA facility was feasibly available. Cotton v. Brown, 7 Vet. App 325, 327 (1995). The fact that a VA medical center was located in the same city as the private facility does not provide an adequate basis for the Board’s findings that a VA facility was “available”; rather, the determination of whether a VA facility was “feasibly available” must be made after consideration of such factors as the urgent nature of the veteran’s medical condition and the length of any delay that would have been required to obtain treatment from a VA facility. Id. at 327-28. Respecting the relative distance of the travel involved, the Board may take notice of facts, as compared to evidence, which are not subject to interpretation. See Yeoman v. West, 140 F.3d 1443 (Fed. Cir. 1998); Dedicatoria v. Brown, 8 Vet. App. 441 (1995). Other factors to consider include whether a prudent layperson would consider an attempt to use a VA facility beforehand or obtain prior VA authorization for the services required would have been reasonable, sound, wise, or practicable, or whether treatment had been or would have been refused. As an example, these conditions would be met by evidence establishing that a Veteran was brought to a hospital in an ambulance and the ambulance personnel determined the nearest available appropriate level of care was at a non–VA medical center. 38 C.F.R. §§ 17.120(c), 17.1002(c). Regardless, no reimbursement or payment of services will be made when such treatment was procured through private sources in preference to available Government facilities. 38 C.F.R. § 17.130. In this case, the Veteran has indicated that even though she is enrolled with VA in the 24 months preceding treatment and that she has Medicare Part A, she is still personally liable to SMH for medical expenses related to the episode of treatment at issue in this case. See Staab v. McDonald, 28 Vet. App. 50 (2016). Accordingly, as SMH is a hospital that provides emergency medical services, she was not insured on the job, has no other third-party recourse, and she does not qualify for payment under 38 U.S.C. § 1728 in this case, the Board concedes that the Veteran meets conditions (a), and (d) through (h) under 38 C.F.R. § 17.1002. Turning to whether there was an emergent condition in this case, the Board notes that although the VA Medical Center pointed to an opinion by the Chief Medical Officer, that opinion is not associated with the claims file. However, that opinion was that, as the Veteran had symptoms for two months prior to February 9, 2015, and because she did not have DVT at the time of treatment, her presentation at SMH was not an emergency. It does not appear that the Chief Medical Officer considered the Veteran’s relevant medical history and the intermittent nature of her presenting symptoms over that 2-month period in arriving at that conclusion. Regardless, both the Veteran—who is a nurse by professional training—and her VA vascular surgeon indicated that the Veteran seeking emergency treatment given her symptom presentation and her medical history on February 9, 2015, was the appropriate course of action. In particular, Dr. G.S.J. noted that seeking treatment at the closest emergency room given the Veteran’s presentation of symptoms and medical history was “in keeping with the tenets of standard care” and that had she not done so “she would have stood the risk of suffering potential[ly] fatal complications.” Finally, given her signs, symptoms, and medical history, the Veteran indicated that she felt that she may have had a clot and that she felt it was an emergency situation. The Board finds the Veteran’s statements and Dr. G.S.J.’s medical opinion to be the most probative evidence of record as to whether the Veteran’s condition was a medical emergency on February 15, 2015. Accordingly, the Board finds that on February 9, 2015, the Veteran’s medical condition was 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. Turning to feasibility, the closest VA facility was approximately 50 miles and an hour drive from the Veteran’s home. She indicated that she was informed by her VA vascular surgeon, Dr. G.S.J., to seek treatment at the closest emergency room—which was a 4-mile, 10-minute drive from her home—for her condition. Dr. G.S.J. additionally indicated that the distance to VA from her home had she had a DVT would have risked potentially fatal complications. Accordingly, given the emergent condition and the risks of driving the distance to VA in order to receive emergency treatment, the Board resolves reasonable doubt in the Veteran’s favor and finds that VA facilities were not feasibly available to treat her on February 9, 2015. Accordingly, as the Veteran’s condition was such that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health and because VA facilities were not feasibly available, payment or reimbursement for medical expenses incurred on February 9, 2015, at SMH, is warranted based on the evidence of record at this time. See 38 U.S.C. §§ 1725, 1728, 5107; 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120, 17.121, 17.1002. In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Peters, Counsel