Citation Nr: 1815960 Decision Date: 03/15/18 Archive Date: 03/23/18 DOCKET NO. 14-32 170A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Martinsburg, West Virginia THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred on January 19, 2012, at Chambersburg Hospital. (The issues of entitlement to an increased rating for bipolar disorder and service connection for migraine headaches will be addressed in a separate decision.) REPRESENTATION Appellant represented by: Ralph Bratch, Attorney ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from June 1991 to December 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2012 determination by the Department of Veterans Affairs (VA) Medical Center (MC) in Martinsburg, West Virginia. The Veteran requested a videoconference hearing in a September 2014 VA Form 9; in March 2017 correspondence, he later withdrew this request. See 38 C.F.R. § 20.704(e) (2017). In addition to the paper VHA file, the Board has reviewed the Virtual VA and Veterans Benefits Management System (VBMS) electronic claims file associated with the Veteran's claim. FINDINGS OF FACT 1. On January 19, 2012, the Veteran was service connected for bipolar disorder, previously dysthymia with generalized anxiety disorder and panic attacks. 2. Resolving reasonable doubt in the Veteran's favor, the care on January 19, 2012, was rendered in a medical emergency of such a nature that delay would have been hazardous to life or health, and federal facilities were not reasonably available and an attempt to use them beforehand would not have been reasonable, sound, wise or practicable. CONCLUSION OF LAW The criteria for payment or reimbursement for medical services, incurred on January 19, 2012, at Chambersburg Hospital, Chambersburg, Pennsylvania, have been met. 38 U.S.C. §§ 1703, 1728, 5107; 38 C.F.R. §§ 3.102, 17.52, 17.53, 17.120 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION As an initial matter, as the Board is granting the benefit sought on appeal, a discussion of VA's duties to notify and assist under the provisions of the Veterans Claims Assistance Act of 2000 is not necessary. On January 19, 2012, the Veteran presented for emergency treatment at Chambersburg Hospital, Chambersburg, Pennsylvania. Treatment records show that he complained of difficulty breathing, sharp chest pain when coughing, hot flashes, and a history of five to six days of coughing up yellowish brown phlegm. He stated, "My lungs are killing me." Treatment records show that the ultimate diagnosis was acute bronchitis with chest pain and that he was discharged the same day. The Veteran has since claimed that at that time he was having a severe panic and anxiety attack which prevented him from breathing. See November 2012 notice of disagreement. He speculates that this may also have been a side effect of an anxiety medication propranolol. Id. The Veteran seeks reimbursement for his private treatment costs. When a Veteran receives treatment at a non-VA facility without prior authorization, as in this case, there are two statutes that allow for him to be paid or reimbursed for the medical expenses incurred for that treatment if required criteria are met, 38 U.S.C. §§ 1725 and 1728. As explained below, because all of the criteria outlined in 38 U.S.C. § 1728 are met, consideration of the Veteran's entitlement to reimbursement for unauthorized medical expenses under 38 U.S.C. § 1725 is moot. In general, under 38 U.S.C. § 1728, in order to be entitled to payment or reimbursement of medical expenses incurred at a non-VA facility, there must be a showing that three criteria are met: (a) the care and services rendered were either: (1) for an adjudicated service-connected disability, (2) for a nonservice-connected disability associated with and held to be aggravating an adjudicated service-connected disability, (3) for any disability of a Veteran who has a total disability, permanent in nature, resulting from a service-connected disability, or (4) for any injury, illness, or dental condition in the case of a Veteran who is participating in a rehabilitation program and who is medically determined to be in need of hospital care or medical services for reasons set forth in 38 C.F.R. § 17.47 (i); and (b) the treatment was for a medical emergency of such 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 (c) VA or other Federal facilities were not feasibly available and an attempt to use them beforehand or obtain prior authorization for the services required would not have been reasonable, sound, wise, or practicable, or treatment had been or would have been refused. 38 U.S.C. § 1728 (a); see also 38 C.F.R. § 17.120. The standard of a medical emergency of such nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health 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. 38 C.F.R. §§ 17.120 (b); 17.1002(b). Medical evidence is not necessary to establish the existence of an emergency on admission under the prudent layperson standard. See Swinney v. Shinseki, 23 Vet. App. 257 (2009). A VA facility may be considered as not feasibly available when the urgency of the applicant's medical condition, the relative distance of the travel involved, or the nature of the treatment required makes it necessary or economically advisable to use public or private facilities. 38 C.F.R. § 17.53. All three statutory requirements found in 38 U.S.C. § 1728 must be met before the reimbursement may be authorized. 38 C.F.R. § 17.120; Zimick v. West, 11 Vet. App. 45, 49 (1998). After reviewing the evidence of record, the Board finds the criteria for reimbursement under 38 U.S.C. § 1728 have been met. The Veteran was in receipt of a 70 percent rating for bipolar disorder (previously dysthymia with generalized anxiety disorder and panic attacks) at the time of the non-VA emergency room treatment on January 19, 2012 and has submitted a letter from his treating VA psychiatrist stating that his symptoms were related to his mental health issues and/or side-effects of propranolol, a medication the Veteran was taking for anxiety. Thus, the Board finds criterion (a) is met. The Board finds criterion (b) is also met. On January 19, 2012, the Veteran was experiencing a severe panic and anxiety attack involving difficulty breathing and chest pain. Although treatment records indicate that he had also been experiencing lung congestion for several days prior and was eventually diagnosed with bronchitis, the Board does not find these to be mutually exclusive. In other words, it is not unreasonable to conclude that the Veteran had chest congestion for a number of days and, in addition to these symptoms, started experiencing a severe panic attack. Indeed, his history of panic attacks is well documented. In this regard, an August 2012 VA mental health treatment record shows that the Veteran had chronic complaints of anxiety accompanied by a feeling of impending doom and feeling as though he were unable to breathe. Moreover, the same record also shows that the Veteran had a number of past medication trails, including for propranolol, with generally poor response. As noted above, his treating VA psychiatrist has stated that at the time of the emergency treatment, he was taking propranolol for anxiety symptoms. Significantly, users of propranolol are advised to seek immediate medical attention if they notice any symptoms of a serious (but rare) allergic reaction including: rash, itching/swelling, severe dizziness, and trouble breathing. See Propranolol HCL, WebMD, https://www.webmd.com/drugs/2/drug-10404-9168/propranolol-oral/propranolol-oral/details. Hence, taking as true the Veteran's statements that he was experiencing a severe panic/anxiety attack which made him feel as though he were unable to breathe, and regardless of the ultimate diagnosis of acute bronchitis, the Board finds that his condition was emergent. Again, the standard for determining an emergent condition that immediate medical attention is required is based on that of a "prudent layperson." In other words, the Board must view the surrounding circumstances of the Veteran's condition through the lens of the person not equipped with the medical knowledge, education and training of a doctor or nurse, or the foresight of after-attained diagnosis, but the view of a layperson leading up to the incident. In viewing the totality of the circumstances that led up to the Veteran receiving care at Chambersburg Hospital, and considering that difficulty breathing is identified as one of four side effects of propranolol requiring immediate medical attention, the Board finds that the Veteran's condition was in fact an emergency that a prudent person would have sought immediate medical attention. Finally, the Board finds criterion (c) is met. Specifically, the Board finds that in such an emergent circumstance a VA facility was not feasible. In finding the Veteran's condition emergent, as set out above, the Veteran sought out the closest medical facility which was Chambersburg Hospital, which is located less than nine miles from the Veteran's parents' house in Saint Thomas, Pennsylvania - the location where the Veteran was staying at that time. The Board points out that the closest VAMC (in Martinsburg, West Virginia) is over 50 miles from this location. Therefore, the Board finds that any VA facility cannot be considered a reasonable option for the Veteran's medical needs on January 19, 2012. For the reasons outlined above, and resolving reasonable doubt in the Veteran's favor, the Board concludes that the criteria for payment of or reimbursement for expenses associated with unauthorized medical treatment furnished on January 19, 2012, under 38 U.S.C. § 1728, have been met. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. (CONTINUED ON NEXT PAGE) ORDER Entitlement to payment or reimbursement of unauthorized medical expenses incurred on January 19, 2012, at Chambersburg Hospital, Chambersburg, Pennsylvania, is granted. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs