Citation Nr: 20023086 Decision Date: 04/03/20 Archive Date: 04/03/20 DOCKET NO. 16-12 528A DATE: April 3, 2020 ORDER Entitlement to payment or reimbursement of the cost of medical services received at West Virginia University Hospital (WVUH) in Morgantown, West Virginia from December 10, 2014 through December 18, 2014 is granted. FINDING OF FACT 1. The emergency room (ER) and hospital treatment the Veteran received at WVUH from December 10, 2014 through December 18, 2014 was for a condition of such a nature that a prudent layperson would have believed that delay in seeking immediate medical attention would have been hazardous to health. 2. A VA or other federal facility was not feasibly available to provide the treatment. CONCLUSION OF LAW The criteria for entitlement to payment or reimbursement of the cost of medical services received at West Virginia University Hospital (WVUH) from December 10, 2014 through December 18, 2014 have been met. 38 U.S.C. § 1725; 38 C.F.R. § 17.1002. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1995 to May 1996. This matter is on appeal before the Board of Veterans Appeals (Board) from an August 2015 decision of the Department of Veterans Affairs Medical Center (VAMC) in Clarksburg, West Virginia. 1. Entitlement to payment or reimbursement of the cost of medical services received at West Virginia University Hospital (WVUH) from December 10, 2014 through December 18, 2014. The Veteran has claimed payment or reimbursement for treatment she received at WVUH from December 10, 2014 through December 18, 2014. 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, the Veteran does not have a total and permanent service-connected disability rating and 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. There are three primary requirements for payment or reimbursement under this statute. The Veteran must be treated in an emergency department or similar facility held out as providing emergency treatment to the public. Also, the treatment received 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. Additionally, a VA or federal facility must not be feasibly available to provide the treatment and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson. 38 C.F.R. § 17.1002(a-c). The evidence indicates that the Veteran suffers from mitochondrial disease with symptoms that include seizures and gastroparesis (i.e. slowed down or stopped motility, which prevents the stomach from emptying properly). Placement and use of a jejunal (J) tube leading to the small intestine, a gastrostomy (G) tube leading directly to the stomach and a Hickman catheter leading through the jugular vein has been required for the Veteran to receive necessary nutrition and medication. A December 9, 2014 VA telephone progress note shows that the Veteran spoke with her primary care physician at the Pittsburgh VAMC concerning her current health status. The Veteran indicated that she had pus coming out of her J-tube; that this discharge had been cultured about 2 weeks previously; and the subsequent test results were positive for infection from klebsiella and staph bacteria. Also, the Veteran had been having fevers around 100.1 and her systolic blood pressure was low (e.g.. 80). The primary care physician noted that the Veteran was planning on coming to the Pittsburgh VAMC emergency room (ER) and that the physician would notify the ER that the Veteran was coming. A December 14, 2014 phone message from the Veteran to her primary care physician indicates that subsequent to speaking with the physician concerning reporting to the ER, it had been her plan for her husband to drive her to the Pittsburgh VAMC. She noted that they left for Pittsburgh after he returned from work. However, because the weather was icy and snowy, they ended up going to the WVUH ER in Morgantown (which is on the way from their home to the Pittsburgh VAMC). At WVUH, the medical personnel found that she had klebsiella pneumonia and staph infection in her stoma. They also found that she had staph infection in her blood that was going to require removal of her Hickman catheter in the hospital. Additionally, there was the possibility of klebsiella and fungal infection in her blood. Treatment records from WVUH shows that the Veteran was seen at the emergency room (ER) on December 10, 2014. It was noted that she had a history of mitochondrial congenital disease with progressive paralysis of the lower extremity. The Veteran reported that she had developed a low-grade fever and nausea over the past 3 weeks persisting since onset. She had the J-tube, G-tube, Hickman catheter and a port in place and reported that the cultures were taken from the J-tube on December 4th due to surrounding pus. Results of testing of these cultures were positive for strep epidermidis and klebsiella pneumonia. Physical examination at the ER showed purulent drainage around the J tube and within the J tube. The G tube appeared normal with clear dark brown drainage in the collection bag. The diagnostic impression was that the Veteran presented to the ER with symptoms concerning for but not limited to cellulitis vs intraabdominal abscess vs gastroenteritis vs vascular access associated bacteremia. The Veteran was admitted to the medicine department of the hospital for concern for intraabdominal infection vs line bacteremia. Subsequent WVUH records show that the Veteran was treated from December 10, 2014 through December 18, 2014. A December 16, 2014 infectious disease consultation report indicates that the Veteran had additional medical history of Addison’s disease, history of cerebrovascular accident and history of deep vein thromboses. It was noted that during hospitalization, staph bacteria was isolated from her Hickman catheter resulting in the need for surgical intervention to replace the catheter (which occurred on December 16, 2014). The infectious disease specialist noted that he agreed with the current treatment plan of a 48-hour course of the Veteran’s current antimicrobial regimen following replacement of the Hickman catheter. A December 18, 2014 medicine note indicates that the Veteran remained afebrile and without leukocytosis. It was noted that the antimicrobial therapy would be discontinued as 48 hours had passed since the Hickman catheter replacement. It was also noted that general surgery was not recommending replacement of the J-tube or G-tube as the tubing was patent. It was determined that the Veteran could be discharged home with resumption of her home health care services. She was advised to continue nightly total parenteral nutrition and to continue various therapies, including for nausea, oral candidiasis, chronic hypokalemia, seizures, Addison’s disease, anxiety and pain. The above summarized evidence shows that the Veteran was seen at the WVUH ER on December 10, 2014 followed by inpatient treatment at the hospital. Thus, she was treated at an emergency department or similar facility held out as providing emergency treatment to the public. 38 C.F.R. § 17.1002(a). Also, at the time of the treatment, it was evident that in addition to her already severe chronic health condition, she had developed a dangerous infection to at least one of her tubes/catheters. Thus, when she reported to WVUH, she was seeking treatment for a condition, which a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. 38 C.F.R. § 17.1002(b). Regarding the feasible availability of a VA facility, at the time the treatment was provided, the Veteran was living in West Virginia. The Pittsburgh VAMC is located approximately 98 miles from her home. WVUH is approximately 28 miles from her home. As shown by the December 9, 2014 VA progress note, the agreed upon treatment plan for the Veteran’s serious infection was for her report to the Pittsburgh VAMC ER. Also, as shown by the subsequent December 14, 2014 phone note, the Veteran and her husband had attempted to report to the Pittsburgh VAMC but because of bad weather, they ultimately decided that it would be safer to seek care at WVUH. Given the Veteran’s seriously compromised health and the inclement weather, and resolving any reasonable doubt in her favor, the Board finds that the Pittsburgh VAMC was not feasibly available to provide the emergency treatment received at WVUH and an attempt to use the facility beforehand would not have been considered reasonable by a prudent layperson. 38 C.F.R. § 17.1002(c). The Board notes that the Clarksburg West Virginia VAMC, which was also equipped with an ER, is a little closer to the Veteran’s home, approximately 20 miles. However, as noted above, the treatment plan agreed to by the Veteran and her VA primary care physician was for her to travel to the Pittsburgh VAMC, not to Clarksburg. Also, the evidence reasonably indicates that the Veteran and her husband attempted to report to Pittsburgh but due to the weather problems had to stop for treatment at WVUH in Morgantown. Given that the decision not to continue to Pittsburgh is reasonably shown to have occurred en route (i.e. relatively close to Morgantown) and given the inclement weather, it would not have been a prudent course of action to turn around and drive to Clarksburg (e.g. approximately 44 miles away from WVUH). Thus, under the circumstances of this case, the Clarksburg VAMC was also not feasibly available to provide the treatment the Veteran received at WVUH. Additionally, there is no indication that any other federal facility was feasibly available to provide the treatment. Id. There are additional criteria that must be met in order to award payment or reimbursement of the cost of private medical services under 38 U.S.C. § 1725. However, there is no indication that the Veteran failed to meet any of these additional criteria. 38 C.F.R. § 17.1002(d-h). Consequently, it is reasonably shown that she has met all necessary criteria to allow for VA payment of the cost of the WVUH services provided to her from December 10, 2014 to December 18, 2014. 38 C.F.R. § 17.1002(a-h). The Board notes that there are certain payment limitations that apply to awards of payment or reimbursement under 38 U.S.C. § 1725. These limitations vary according to whether the Veteran has other insurance, which covered part of the cost of the hospitalization. See 38 C.F.R. § 17.1005. In this case, it is not clear if the Veteran had such other insurance coverage. If the Veteran did not have any other insurance coverage, payment or reimbursement should be governed by 38 C.F.R. § 17.1005(a)(1). If the Veteran did have other insurance coverage, payment or reimbursement should be governed by 38 C.F.R. § 17.1005(a)(2). (Continued on the next page)   Also, if the Veteran did have other insurance, which paid for part of the cost of the hospitalization, the VAMC must ensure to follow the recent holding in Wolfe v. Wilkie, 32 Vet. App. 1 (2019), which invalidated most of 38 C.F.R. § 17.1005(a)(5). In pertinent part, the Wolfe decision holds that VA is required to pay or reimburse the cost of private insurance deductible and coinsurance amounts but is still not required to pay or reimburse private insurance copayments. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dan Brook, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.