Citation Nr: 18155227 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 15-35 380A DATE: December 4, 2018 ORDER Entitlement to payment or reimbursement of the cost of medical services received at Grady General Hospital (GGH) from February 3, 2015 through February 5, 2015 is granted subject to the regulations governing such awards. FINDING OF FACT The treatment received at the GGH emergency room (ER) and hospital was for a medical condition that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to health and a VA or other federal facility was not feasibly available to provide the treatment. CONCLUSION OF LAW The criteria for entitlement to payment or reimbursement of the cost of medical services received at GGH from February 3, 2015 through February 5, 2015 have been met. 38 U.S.C. § 1725; 38 C.F.R. § 17.1002. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1969 to February 1971. This matter is on appeal before the Board of Veterans Appeals (Board) from a June 2015 decision of the Department of Veterans Affairs (VA) North Florida/South Georgia VA Health Care System (HCS). Entitlement to payment or reimbursement of the cost of medical services received at GGH from February 3, 2015 through February 5, 2015. The Veteran has claimed payment or reimbursement for the evaluation and treatment he received at GGH from February 3, 2015 to February 5, 2015. This evaluation and treatment lasted for approximately 38 hours, from the evening of February 3rd to the morning of February 5th and 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, the Veteran did not have a total and permanent service-connected disability rating at the time he received the care and it was not for any service-connected disability or for any disability that was aggravating a service-connected disability. In this regard, at the time of the treatment, the Veteran’s combined service-connected disability rating was 80 percent, rather than total. Also, while the Veteran was service connected for diabetes, the evidence of record does not establish that the Veteran’s foot wound/rash was a symptom or manifestation of his diabetes. Rather, it indicates that the etiology of the foot wound/rash was unknown. Similarly, there is no indication that the foot wound was aggravating the Veteran’s diabetes. Additionally, the treatment the Veteran received at GGH was 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(a). Nonetheless, payment or reimbursement for private emergency medical treatment may be considered under 38 U.S.C. § 1725. The primary requirements for entitlement 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 evidence shows that in February 2015, the Veteran was 66 years-old. In addition to diabetes, which was rated as 20 percent disabling, he was also service-connected for coronary artery disease, which was rated as 60 percent disabling. On February 2, 2015, the Veteran sent a message to his VA primary care provider. The Veteran indicated that the diagnosed fungal infection on his left foot was not getting any better. He also indicated that he had run out of antifungal cream and that the antifungal cream had not been helping. He noted that his foot was scaly, dry and cracking. He also noted that the dark red area on the foot was getting bigger and starting to hurt. Additionally, he reported that his next appointment with a VA podiatrist was not until March 16th. He asked if there was any way he could be seen by a doctor or alternatively, whether he should go to the emergency room (ER). In a February 3, 2015 progress note in response to the Veteran’s message, a VA primary care physician indicated that she recommended an ER evaluation. The Veteran subsequently went to the ER at GGH, the nearest ER to his home. He was evaluated by an ER physician at approximately 8:30 p.m. Upon evaluation at GGW, it was noted that the Veteran had a history of coronary artery disease, poorly controlled type 2 diabetes and multiple other medical problems and that he presented with a three-week history of worsening left foot rash and pain. The Veteran indicated that he had been seen by his VA primary care physician on multiple occasions for the foot problem and had been taking topical antifungals and oral antibiotics for as long as two weeks without any improvement. Initial examination at the emergency room showed that the dorsum of left foot had erythematous plaque over the 2nd through 5th metatarsals and involving 2nd to 5th toes. There was maceration between the toes and the skin was cracking. There was no pus or exudates. There were also red papules over the left leg with mild edema. The Veteran was admitted to the hospital for observation and testing to determine the nature and severity of his condition and to rule out serious infection. The initial diagnosis was “foot wound.” While at the hospital, the Veteran was initially treated with topical antibiotic ointment and antifungal creams and he was also started on oral antifungal medication. However, because the topical therapies irritated the skin they were discontinued and topical triamcinolone, a steroid cream, was prescribed. This greatly improved the rash in just a 24-hour period. Consequently, the GGW treating physician determined that the Veteran could be discharged home on the morning of February 5, 2015. At the time of discharge, GGW staff was still waiting for the results of cultures that were taken to help determine the nature of any infection that might be present. It was noted that the etiology of the Veteran’s foot rash and wound had not been determined. Consequently, the Veteran was strongly advised to obtain follow-up with a dermatologist. The above summarized evidence shows that the Veteran was treated at facilities held out as providing emergency treatment to the public, the GGH ER and the hospital itself. 38 C.F.R. § 17.1002(a). The Veteran was also specifically advised by his primary care physician to report to the ER for evaluation of his foot rash/wound. Additionally, the wound had been resistant to antibiotic and antifungal treatment and the Veteran was suffering from uncontrolled diabetes. Given the physician’s advisement to go to the ER; given that is well-known that diabetics with foot wounds are at significantly higher risk for serious complications, including amputations; and given the treatment-resistant nature of the wound, a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to health. 38 C.F.R. § 17.1002(b). Regarding the potential availability of a VA or other facility, the Veteran was living in the same city where GGH is located at the time the GGH treatment was provided. This residence is approximately 3 miles from GGH. In contrast, the nearest VA Medical Center (VAMC) appears to be the Lake City VAMC, which is approximately 117 miles away. Given the Veteran’s acute foot symptomatology considered in conjunction with his severe coronary artery disease (the 60 percent rating that was assigned is indicative of severe disease), it was not feasible for him to drive approximately 117 miles to this nearest VA ER. Also, there is no indication that there was any closer non-VA federal facility with an ER the Veteran could have accessed. Additionally, there is no indication from the record that the Veteran had access to any alternative transportation to the Lake City VAMC at the time in question. Moreover, in response to the Veteran requesting to be seen at his VA outpatient clinic in Tallahassee, which is much closer to his home, he was advised by his primary care physician to report to an ER, rather than to report to the clinic. Accordingly, the evidence reasonably indicates that a VA or other federal facility was not feasibly available to provide the treatment the Veteran received at GGH. Consequently, resolving all reasonable doubt in the Veteran’s favor, a medical emergency was present, and payment or reimbursement for the cost of the medical services received is warranted subject to the regulations governing such awards. See 38 C.F.R. § 17.1005(a) (2018). S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Dan Brook, Counsel