Citation Nr: 18157641 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 16-20 175 DATE: December 13, 2018 ORDER Entitlement to payment for unauthorized private medical expenses incurred at St. Elizabeth Hospital from September 15 to October 21, 2014, is granted. FINDINGS OF FACT 1. The Veteran sought emergency treatment at St. Elizabeth Hospital for symptoms of severe dysphagia and persistent nausea and vomiting; a reasonably prudent layperson would have expected that a delay in seeking immediate medical attention would have been hazardous to his health. 2. The appellant contacted VA on September 16, 2014, and was informed there were no beds available to allow transfer to a VA facility; VA placed the Veteran on a waitlist, but there is no evidence a bed became available to allow transfer prior to his death on October 21, 2014. CONCLUSION OF LAW The criteria for payment of private medical expenses incurred September 14 to October 21, 2014, have been met. 38 U.S.C. § 1725; 38 C.F.R. § 17.1002. REASONS AND BASES FOR FINDINGS AND CONCLUSION VA is authorized to pay or reimburse eligible veterans for the reasonable value of emergency treatment furnished in a non-Department facility. 38 U.S.C. § 1725. To be eligible, the Veteran must be an active Department health-care participant who is personally liable for the emergency treatment furnished. In cases where reimbursement is warranted, payment may be made directly to the hospital or other health care provider that furnished the treatment, or to the person or organization that paid for such treatment on behalf of the Veteran. Id. VA may provide payment or reimbursement for the reasonable value of emergency treatment furnished to a Veteran for non-service-connected conditions in a non-VA facility if each of the following conditions have been 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 U.S.C. 1728 authorizes VA payment or reimbursement for emergency treatment to a limited group of veterans, primarily those who receive emergency treatment for a service-connected disability). 38 C.F.R. § 17.1002; see also 38 U.S.C. § 1725. The appellant’s claim for payment for medical services rendered to the Veteran was initially denied by the Agency of Original Jurisdiction (AOJ) based on a determination that criteria (b) and (c) were not met. Specifically, the AOJ found that the Veteran’s condition at the time he sought treatment was non-emergent, as he had experienced symptoms of nausea and vomiting for approximately one month prior without seeking medical treatment. In addition, the AOJ found that VA facilities, in the form of an outpatient clinic, were feasibly available at the time the Veteran sought emergency treatment at St. Elizabeth Hospital. The record indicates that at approximately 1:15pm on September 15, 2014, the Veteran was transported by ambulance to St. Elizabeth Hospital, with known liver problems and a one-month history of nausea and vomiting. At the hospital, the Veteran presented with severe dysphagia and an inability to tolerate food with persistent nausea and vomiting. He was admitted for clinical monitoring and diagnosed with hepatorenal syndrome and sepsis. He was later noted to be febrile with low urine output and abnormal chest x-ray findings, and transferred to the Medical Intensive Care Unit (MICU) for further management of aspiration pneumonia and sepsis. Initially, the Board finds that the Veteran acted reasonably in presenting himself to St. Elizabeth Hospital rather than the nearest VA treatment facility. The question of medical emergency is determined on the basis of what a reasonable lay person would believe, rather than medical findings. See Swinney v. Shinseki, 23 Vet. App. 257 (2009). That portion of the regulation clearly requires only that the Board determine whether, under the circumstances present at the time the Veteran sought treatment at the private facility, a prudent layperson would reasonably expect that her condition was such that delay in seeking treatment would be hazardous to health or life. Id. Even though the Veteran had been experiencing periodic symptoms of nausea and vomiting for approximately one month, at the time he sought emergency treatment, he was also experiencing severe dysphagia and persistent nausea and vomiting. The Board finds that in such circumstances, given the Veteran’s known history of liver problems, it was reasonable for the Veteran to present himself to the nearest emergency treatment facility as opposed to a VA outpatient care clinic. Furthermore, the record indicates the appellant contacted VA on September 16, 2014, the morning following the Veteran’s emergency care and admission to the MICU. At that time, the appellant notified VA of the Veteran’s emergency admission and requested transfer to a VA facility. VA informed the appellant that transfer could not be accepted, as no beds were available, and the Veteran was placed on a waitlist. There is no evidence that a bed became available, or that VA was able to accept transfer of the Veteran at any time prior to his death on October 21, 2014. (Continued on the next page)   In order to deny the appellant’s claim, VA must establish by the preponderance of the evidence that at least one of the criteria enumerated above has not been met. As discussed above, the Board finds that the Veteran acted as a prudent layperson would in seeking treatment at the nearest emergency facility, and there is no evidence that VA was able to accept transfer of the Veteran’s care at any point between his admission to St. Elizabeth Hospital and the time of his death. Therefore, payment of private medical expenses incurred at St. Elizabeth Hospital from September 15, to October 21, 2014, is warranted. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christopher Murray, Counsel