Citation Nr: 18136294 Decision Date: 09/18/18 Archive Date: 09/18/18 DOCKET NO. 13-03 735A DATE: September 18, 2018 ORDER Entitlement to payment or reimbursement of the cost of medical services received at Camden Clark Memorial Hospital (CCMH) from May 30, 2011, to June 5, 2011, is granted. FINDING OF FACT The treatment received by the Veteran at CCMH was for a continued medical emergency, a VA facility was not available to provide the treatment, and there is no indication that any of the other necessary conditions for basic eligibility for payment or reimbursement have not been satisfied. CONCLUSION OF LAW The criteria for payment or reimbursement for the cost of the medical services received at CCMH from May 30, 2011, to June 5, 2011, are met. 38 U.S.C. § 1725; 38 C.F.R. §§ 17.1002, 17.1005. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1972 to March 1974. This matter is on appeal before the Board of Veterans Appeals (Board) from a decision of the Department of Veterans Affairs Medical Center (VAMC) in Clarksburg, West Virginia. In July 2017, a Board videoconference hearing was held before the undersigned; a transcript of the hearing is of record. 1. Entitlement to payment or reimbursement of the cost of medical services received at CCMH from May 30, 2011, to June 5, 2011. The Veteran has claimed payment or reimbursement for treatment he received at CCMH from May 30, 2011, to June 5, 2011. This treatment 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, at the time of the treatment, the Veteran did not have a total and permanent service-connected disability rating. Additionally, this treatment was not for any service-connected disability or for any disability that was aggravating a service-connected disability. Likewise, the treatment 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. Nonetheless, payment or reimbursement for private emergency medical treatment may be considered under 38 U.S.C. § 1725. The primary requirements for payment or reimbursement 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 indicates that on May 30, 2011, the Veteran was having intermittent chest pains with periods of lightheadedness associated with low blood pressure with 1 episode where he nearly lost consciousness. He was also experiencing intermittent leg pain, dyspnea and back pain and his medical history was significant for a small aortic aneurysm that was being followed by his VA health care provider. Because of his symptomatology and the existence of his aneurysm, he and his wife reported to the CCMH emergency room at approximately 9:50 p.m. on May 30th. CCMH is approximately 10 miles from the Veteran’s home. In contrast, the nearest VA Medical Center, the Clarksburg VAMC, is approximately 77 miles from the Veteran’s home and approximately 74 miles from CCMH. After arriving at CCMH, the Veteran reported to hospital staff that his aneurysm had last been measured by VA as 4.9 cm. An abdominal ultrasound was subsequently performed, which showed that the aneurysm had increased in size to 5.3 cm. A consultation with Dr. M, an endovascular surgeon, was performed. Dr. M ultimately determined that repair of the aneurysm was necessary. On June 3, 2011, the Veteran underwent the repair surgery, an endovascular aneurysm repair (EVAR). The surgery was deemed to be successful and after recovering from it, the Veteran was discharged home on June 5, 2011. A June 2011 VAMC progress note indicates that the cost of the Veteran’s initial treatment and evaluation at the CCMH ER was approved for payment or reimbursement. However, the VAMC found that the Veteran was stabilized at the CCMH emergency room and thus could have been safely transferred to the Clarksburg VAMC for further treatment following his ER visit. Similarly, in a September 2011 reconsideration, a VAMC nurse found that the Veteran was stable for transfer from CCMH to the VAMC on the night of May 30, 2011, noting that the Veteran’s blood pressure was stable and that a CCMH physician had noted that the veteran was “stable” upon admission. Then, in the subsequent August 2012 statement of the case, the VAMC more generally found the VAMC was feasibly available to provide the treatment the Veteran received at CCMH. The above summarized evidence shows that the Veteran was treated at CCMH, a facility that provides emergency care to the public. Also, given the significant symptoms he was experiencing considered in conjunction with his serious pre-existing aortic aneurysm, a prudent layperson would have reasonably expected that delay in seeking immediate medical attention on the evening of May 30, 2011, would have been hazardous to life or health. Additionally, given the great distance from the Veteran’s home to the nearest VAMC in Clarksburg (and the lack of any indication that another federal facility was available), a VA or federal facility was not feasibly available to provide the treatment. Consequently, the primary criteria for payment or reimbursement of the cost of the CCMH treatment have been met. 38 C.F.R. § 17.1002(a-c). There are additional criteria that must be met to warrant payment or reimbursement under 38 C.F.R. § 1725. However, there is no indication from the record that the Veteran did not meet any of these additional criteria. See 38 C.F.R. § 17.1002 (d-h). Also, the June 2011 progress note indicating approval for payment or reimbursement of the cost of the initial treatment the Veteran received at the CCMH ER, reasonably indicates that these other criteria had been met, as such an approval decision would not have been made if even one of these additional criteria had not been met. Id. Consequently, it is clearly established that payment or reimbursement for the cost of the initial ER evaluation and treatment the Veteran received at CCMH is warranted. Regarding the continued treatment the Veteran received at CCMH, the controlling regulation indicates that VA will generally not approve claims for payment or reimbursement of the costs of emergency treatment not previously authorized for any period beyond the date on which the medical emergency ended. VA considers that an emergency ends when a designated VA clinician determined that, based on sound medical judgment, a veteran who received emergency treatment: (1) Could have been transferred from the non-VA facility to a VA medical center or other appropriate Federal facility for continuation of treatment, or (2) Could have reported to a VA medical center (or other appropriate Federal facility for continuation of treatment. 38 C.F.R. § 17.1005(b). Notably, in the June 2011 VA progress note, a VA clinician did find that the Veteran’s condition had stabilized in the CCMH emergency room to the point where he could have transferred to the VA for further treatment. However, the clinician did not offer any specific explanation for this finding. The subsequent VAMC nurse who performed the September 2011 reconsideration did reference notations in the record indicating that the Veteran’s blood pressure was stable and he was more generally noted to be “stable” while at the CCMH ER. However, in a December 2011 letter, Dr. M, the CCMH surgeon who performed the Veteran’s aneurysm repair surgery, indicated that when the Veteran presented to CCMH, the size of his aneurysm had increased from 4.8 cm to 5.3 cm and he was also experiencing back pain. Dr. M commented that the size of the aneurysm and the accompanying back pain indicated a high risk that the aneurysm would rupture. Given this particular presentation, it was Dr. M’s professional judgment that transferring the Veteran to the VAMC was life-threatening. Given that neither VA clinician explained how the Veteran could have been stable for transfer when his treating endovascular surgeon had specifically determined that his transfer to the VAMC would have been life-threatening, the weight of the evidence is against a finding that either VA clinician’s opinion was based on sound medical judgment. Thus, in the absence of any designated VA clinician’s opinion based on sound medical judgment that the Veteran’s medical emergency ended at any time prior to the Veteran’s discharge from CCMH on June 5, 2011, the Board must credit the assessment of the CCMH medical professionals that hospitalization for emergency treatment at CCMH was necessary from arrival in the ER on May 30, 2011 until the Veteran’s discharge from the facility on June 5, 2011. Consequently, the Veteran’s medical emergency is not deemed to have ended until he was discharged from CCMH on June 5, 2011. 38 C.F.R. § 17.1005(b). Accordingly, payment or reimbursement of the entire cost of the CCMH treatment from May 30, 2011, to June 5, 2011, is warranted subject to subject to the provisions governing payment of these awards. See 38 C.F.R. 17.1005 (a) (1-5). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Dan Brook, Counsel