Citation Nr: 1815809 Decision Date: 03/15/18 Archive Date: 03/23/18 DOCKET NO. 14-24 645A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Murfreesboro, Tennessee THE ISSUE Entitlement to reimbursement or payment of medical expenses incurred at a private hospital from January 30, 2014, to January 31, 2014. REPRESENTATION Veteran represented by: Tennessee Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served in the United States Army from 1975 to 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2014 decision by the Department of Veterans Affairs Medical Center (VAMC) in Murfreesboro, Tennessee. In November 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge, via videoconference. A transcript of the proceeding is of record. FINDING OF FACT The medical services provided at a private hospital from January 30, 2014, to January 31, 2014, were rendered in a medical emergency of such a nature that delay would have been hazardous to life or health, and the situation was analogous to one where federal facilities were not reasonably available and an attempt to use them beforehand would not have been reasonable. CONCLUSION OF LAW The criteria for entitlement to reimbursement of medical expenses incurred at a private hospital from January 30, 2014, to January 31, 2014, have been met. 38 U.S.C. §§ 1703, 1725, 1728 (2012); 38 C.F.R. §§ 17.120-17.121 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA is authorized to reimburse veterans for emergency medical treatment under 38 U.S.C. § 1725 and 38 U.S.C. § 1728. To be eligible for reimbursement under 38 U.S.C. § 1728, the treatment must have been for associated with a service-connected disability or the Veteran must be a participant in a vocational rehabilitation program. 38 U.S.C. § 1728 (a); 38 C.F.R. § 17.120 (2017). The Veteran did not meet the criteria for payment of authorized or unauthorized medical expenses of 38 U.S.C. § 1728 (2012); thus, the Veteran's claim for payment must be considered under criteria for determining entitlement under the Veterans Millennium Healthcare and Benefits Act (Act), 38 U.S.C. § 1725; 38 C.F.R. §§ 17.1000 - 17.1008. The criteria that must be met are as follows: (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) The claim for payment or reimbursement for any medical care beyond the initial emergency evaluation and treatment is for a continued medical emergency of such a nature that the Veteran could not have been safely transferred to a VA or other Federal facility (the medical emergency lasts only until the time the Veteran becomes stabilized); (e) 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; (f) The veteran is financially liable to the provider of that emergency treatment for that treatment; (g) The veteran has no coverage under a health-plan contract for payment or reimbursement, in whole or in part, 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 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); (h) 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 or in part, the veteran's liability to the provider; (i) 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 (a)-(i). The Veteran is seeking reimbursement for medical expenses incurred at a private hospital from January 30, 2014, to January 30, 2014. He contends that he was advised by VA that the treatment would be paid by VA if he was transferred to a VA hospital within 24 hours. The claim was denied on the basis that the need for care was not a medical emergency and a VA appointment was available within two weeks. A transfer summary by Dr. MS states that the Veteran had been struggling with a spider bite for the past two weeks. The Veteran had been seen by urgent care two days prior to hospital admission and was prescribed Bactrim, but the cellulitis got worse. Dr. MS observed the Veteran's arm to be extremely swollen and erythematous and reported that a copious amount of pus was drained from the arm. The Veteran was admitted to the hospital and given I.V. antibiotics. He was transferred to the Murfreesboro VAMC the next day. At the time of transfer, Dr. MS determined the Veteran's prognosis to be guarded. In a November 2016 opinion, Dr. MS stated that at the time of treatment, the Veteran had impending compartment syndrome, which could have been a life-threatening situation. Dr. MS noted that the private hospital is in a remote town in East Tennessee and opined that the Veteran's need for treatment was a medical emergency. There are no contradictory medical opinions of record. The Veteran testified that the nearest VA facilities are approximately 110 and 173 miles away from the private hospital. At the time the Veteran sought treatment, he had been attempting to treat the spider bite for two weeks and, even after receiving a prescription from an urgent care facility, the symptoms became worse, leading to swelling, erythema, and the development of a great deal of pus in the wound. The Veteran's private treating physician believed the Veteran's situation to be a medical emergency sufficient to require admittance to the hospital and the administration of I.V. antibiotics. In light of these facts, the Board finds that the Veteran's symptoms were such that prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. Further, the Board concludes that it is unreasonable to expect the Veteran to have traveled hours to a VA facility for emergency treatment or to wait up to two weeks for an appointment. Therefore, the Board determines that VA facilities were also not feasibly available for the treatment that occurred from January 30, 2014 to January 31, 2014. The claim for reimbursement or payment of medical expenses incurred at a private hospital from January 30, 2014 to January 31, 2014 is granted. ORDER Reimbursement or payment of medical expenses incurred at a private hospital from January 30, 2014 to January 31, 2014 is granted ______________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs