Citation Nr: 18156872 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16-38 787 DATE: December 11, 2018 ORDER Entitlement to payment or reimbursement of unauthorized medical expenses incurred at Morton Plant North Bay Hospital (MPNBH) on August 17, 2015, is denied. FINDING OF FACT On August 17, 2015, the Veteran’s condition was not 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. CONCLUSION OF LAW The criteria for payment or reimbursement to unauthorized medical expenses incurred at MPNBH on August 17, 2015, are not met. 38 U.S.C. §§ 1703, 1728, 5107; 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120, 17.121. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from October 1964 to October 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a letter of determination by a Department of Veterans Affairs (VA) Medical Center. On August 17, 2015, the Veteran presented at MPNBH for treatment with complaints that he was “a mouth breather and [had] vomited [that day], ha[d] dry mouth, anxiety and [could] not sleep.” He indicated that he was supposed to use a CPAP machine for his sleep apnea, but he could not wear the nose mask because he breathes through his mouth. He additionally reported suffering from anxiety and problems sleeping. He further stated that he took his trazadone and anxiety medication but he could not fall asleep. He stated that “he came to [the emergency room] to get a suggestion as to what to do.” The Veteran denied pain, shortness of breath, chest pain, and abdominal pain. On examination, he was alert, and in no acute distress; he was described as “very pleasant.” His physical examination was normal. The emergency room physician noted that he had a “long conversation” with the Veteran and the nurse, and recommended that he talk to his primary care physician about a different CPAP mask that covered his mouth as well as his nose. The Veteran indicated that he would call his primary care physician the next day. The emergency room physician reiterated that the Veteran “again state[d] no other complaints.” He was discharged approximately one hour after being admitted. In his notice of disagreement, the Veteran indicated that the August 17, 2015, emergency room visit was a “prelude to a massive heart attack a week later.” He indicated that on the morning of August 17, 2015, he was unable to sleep or rest; he further noted that this was the second consecutive day of symptoms, which included “bad pains across [his] chest, highly anxious, [and that he] could not breath.” He stated that after “living with these symptoms for a long time,” he decided to see a doctor in the emergency room and that he did not know what a heart attack was like or how serious things were. He concluded that the next week he had a massive heart attack with a 97 percent blockage that required placement of a stent immediately. In his January 2016 substantive appeal, VA Form 9, the Veteran indicated that the 2 nights before he sought treatment he was unable to sleep and unable to breathe due to “dry mouth and severe chest pains.” He stated that he went to the emergency room after talking to his primary care physician’s nurse. “They could only treat me for the issues I gave them.” He further stated that the next week he had a severe heart attack and they put a stent in his groin. He concluded that he “live[d] with dry mouth all day every day, [and] if [he] complained about it, it was severe enough to keep [him] awake.” As a final factual matter, the Board reflects that MPNBH is approximately 2 miles and 7 minutes from the Veteran’s home; the closest VA facility that handles emergencies is approximately 38 miles and an hour drive from his home. When VA facilities or other government facilities are not capable of furnishing economical hospital care or medical services because of geographic inaccessibility or are not capable of furnishing care or services required, VA may authorize or contract with non-VA facilities for care. 38 U.S.C. § 1703(a); 38 C.F.R. § 17.52(a). Further, in general, if VA is to provide payment or reimbursement of medical expenses incurred in connection with a Veteran’s care at a non-VA hospital, the care must be authorized in advance. See 38 U.S.C. § 1703; 38 C.F.R. § 17.54. In the case of an emergency that existed at the time of admission, an authorization may be deemed a prior authorization if an application is made to VA within 72 hours after the hour of admission. 38 C.F.R. § 17.54. Whether treatment was authorized is a factual, not a medical, determination. Similes v. Brown, 5 Vet. App. 555 (1994). In this case, the evidence of record does not demonstrate that the Veteran contacted VA and obtained authorization from VA prior to going to MPNBH. Consequently, medical expenses on that basis are not warranted. See 38 U.S.C. § 1703. The applicable statute and regulations direct that in the absence of prior appropriate authorization under 38 C.F.R. §§ 17.53 and 17.54, in order to be entitled to payment or reimbursement of unauthorized medical expenses incurred at a non-VA facility, a claimant must show: (a) The care and services rendered were either . . . (3) for any disability of a veteran who has a total disability, permanent in nature, resulting from a service-connected disability; (b) The services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health; and, (c) No VA or other Federal facilities were feasibly available and an attempt to use them beforehand would not have been reasonable. 38 U.S.C. § 1728; 38 C.F.R. § 17.120. If any one of the foregoing requirements is lacking, the benefit sought may not be granted. See Zimick v. West, 11 Vet. App. 45, 49 (1998); Malone v. Gober, 10 Vet. App. 539, 547 (1997); see also Melson v. Derwinski, 1 Vet. App. 334, 337 (the use of the conjunctive “and” in a statutory provision meant that all of the conditions listed in the provision must be met). The standard for finding that services were rendered in a “medical emergency” under 38 U.S.C. § 1728 is the same as that defined in 38 U.S.C. § 1725. Therefore, the claim for payment or reimbursement for initial evaluation and treatment must be 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 a situation involved 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. 38 C.F.R. § 17.1002(b). Since May 27, 2010, the Veteran has been assigned a total disability rating based on individual unemployability due to his service-connected disabilities (TDIU), which include bilateral hearing loss, tinnitus, and an anxiety disorder. Accordingly, the Veteran has a permanent and total disability due to his service-connected disabilities, and therefore under the provisions of section (a)(3) above, the Veteran is eligible for payment or reimbursement under the provisions of 38 C.F.R. § 1728. Turning to whether there was a medical emergency in this case, the Board finds that such was not present on August 17, 2015. The Veteran was noted to have trouble sleeping, and he sought treatment at MPNBH in order to “get a suggestion as to what to do” about his being unable to sleep and/or use his CPAP mask due to being a mouth breather. The Veteran was counseled to talk to his primary care physician to get another CPAP mask. The Veteran specifically denied any shortness of breath or chest pain at that time, and given the opportunity to mention any of those symptoms during the “long conversation” with the emergency room physician, the Veteran “again state[d] no other complaints.” Aside from his noted sleeping complaints and inability to use his CPAP mask upon admission, the Veteran was alert, “very pleasant,” and in no acute distress upon admission to MPNBH on August 17, 2015. The Board notes that a prudent layperson in the Veteran’s situation would not have reasonably viewed the lack of immediate care on August 17, 2015, given the Veteran’s admitting complaints, as placing him in serious jeopardy. In other words, the evidence of record does not demonstrate that, if but for the treatment on August 17, 2015, the Veteran would have died or suffered serious harm nor would a reasonable person believe otherwise. Although the Board acknowledges the Veteran’s statements that he was unable to breath and had chest pains which were causing him anxiety and to be unable to sleep, the evidence of record at the time of admission directly contradicts the Veteran’s assertions. He specifically denied shortness of breath and chest pains on admission. The Board finds that such contemporaneous evidence to be highly credible and probative. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care); Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the Veteran). Thus, in light of the Veteran’s contemporaneous denials of breathing complaints or chest pains, the Board finds the Veteran’s statements that he was experiencing those symptoms and that such symptoms were the cause of his seeking treatment to be not credible. Rather, the evidence of record clearly documents that the Veteran merely sought “suggestions as to what to do” about being unable to sleep and his inability to use his CPAP mask. These are not life-threatening circumstances, and no prudent layperson would believe that the lack of immediate treatment for those circumstances would be a hazard to his life or health. Finally, as an aside, although MPNBH was the closest emergency room to the Veteran’s home, given the relative severity of the Veteran’s symptomatology on admission on August 17, 2015, the Board questions whether driving 38 miles to the nearest VA facility was not actually feasible for the Veteran in this case, as it seems that such would have been feasible. The Board, however, need not actually reach the merits of that aspect of the case, as the finding that there was not an emergent condition on admission to MPNBH on August 17, 2015, in this case is dispositive. Accordingly, the Veteran’s condition was not emergent on admission at MPNBH on August 17, 2015, and therefore payment or reimbursement of the unauthorized medical expenses incurred at MPNBH on August 17, 2015, must be denied at this time based on the evidence of record. See 38 U.S.C. §§ 1703, 1728; 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120, 17.121. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Peters, Counsel