Citation Nr: 21065531 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-50 133A DATE: October 26, 2021 ORDER Entitlement to payment or reimbursement for the cost of medical services at Flagler Hospital on April 15, 2016 is granted. FINDING OF FACT The non-VA medical care provided on April 15, 2016 was for a medical emergency and treatment at a VA medical facility was not feasibly available. CONCLUSION OF LAW The criteria for payment or reimbursement for the cost of unauthorized medical expenses incurred at Flagler Hospital on April 15, 2016 have been met. 38 U.S.C. §§ 1703, 1725; 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120, 17.121. REASONS AND BASES FOR FINDING AND CONCLUSION At the outset, the Board recognizes that the original claim initial is not part of the record. However, given the favorable outcome of the case the Board finds that this is not prejudicial to the Veteran and will proceed with the adjudication of the issue on appeal. The Veteran served on active duty in the United States Army from August 2011 to January 2015. Contentions The Veteran presented to a private ER after experiencing chest pain and shortness of breath. He is seeking payment or reimbursement for the cost of medical services at Flagler Hospital on April 15, 2016. In his April 2017 notice of disagreement (NOD), he described contacting Flagler Hospital on several occasions to make sure that all the necessary paperwork was sent to VAMC Gainesville. Flagler Hospital confirmed to him that all necessary paperwork was sent and sent timely. In his August 2017 VA Form 9, he reiterated this and stated that he relied on the statements made by Flagler Hospital and looking back his only other option would have been to personally deliver the paperwork to VAMC Gainesville. Legal Criteria When a veteran receives treatment at a non-VA facility without prior authorization, such as the case here, there are two statutes that allow for claimants to be paid or reimbursed for the medical expenses incurred for that treatment, 38 U.S.C. § 1728 and 38 U.S.C. § 1725. Application of either statute is generally dependent on whether the Veteran has an adjudicated service-connected disability. Service connection is in effect for obstructive sleep apnea rated at 50 percent, migraine headaches at rated 30 percent, persistent depressive disorder rated at 30 percent, right shoulder impingement syndrome rated at 20 percent, tinnitus rated at 10 percent, left knee patellofemoral pain syndrome rated at 10 percent, and hearing loss of the right ear rated as noncompensable. He is also in receipt of special monthly compensation (SMC) under 38 U.S.C. § 1114(s). As the Veteran does not have a total disability permanent in nature from a service-connected disability, 38 U.S.C. § 1728 is not for application. Because the Veteran's private medical treatment was for a nonservice-connected disorder, and there is not a service-connected disability that is total and permanent in nature, the only possible route to entitlement to unreimbursed medical expenses in this case stems from 38 U.S.C. § 1725, the Veterans Millennium Health Care and Benefits Act. Under this Act, payment or reimbursement of non-VA emergency medical services for nonservice-connected disorders for veterans without insurance is available if certain conditions are met. A threshold requirement under this statute is that the claim for payment or reimbursement be filed within 90 days after the latest of the following: (1) The date the veteran was discharged from the facility that furnished the emergency treatment; (2) The date of death, but only if the death occurred during transportation to a facility for emergency treatment or if it occurred during the stay in the facility that included the provision of the emergency treatment; or (3) The date the veteran finally exhausted, without success, action to obtain payment or reimbursement for the treatment from a third party. 38 C.F.R. § 17.1004 (d). Under 38 C.F.R. § 17.1004(e), if after reviewing a claim the decisionmaker determines that additional information is needed to make a determination regarding the claim, such official will contact the claimant in writing and request additional information. The additional information must be submitted to the decisionmaker within 30 days of receipt of the request or the claim will be treated as abandoned, except that if the claimant within the 30-day period requests in writing additional time, the time period for submission of the information may be extended as reasonably necessary for the requested information to be obtained. 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 other federal facility was not feasibly available to provide the treatment. 38 C.F.R. § 17.1002 (a-c). Generally, VA will not approve claims for payment or reimbursement of the costs of emergency treatment not previously authorized for any period beyond the point of stabilization. For this purpose, VA considers that an emergency ends when the designated VA clinician at the VA facility has determined that, based on sound medical judgment, a veteran who received emergency treatment: could have been transferred from the non-VA facility to a VA medical center (or other appropriate Federal facility) for continuation of treatment, or could have reported to a VA medical center (or other appropriate Federal facility) for continuation of treatment. 38 C.F.R. § 17.1005(b). Claims for payment or reimbursement of the costs of emergency treatment not previously authorized may be approved for continued, non-emergent treatment (that is, treatment after the veteran's condition has stabilized), only if: the non-VA facility notified VA at the time the veteran could be safely transferred to a VA facility (or other appropriate Federal facility), but the transfer of the veteran was not accepted, and the non-VA facility made and documented reasonable attempts to request transfer of the veteran to a VA facility or other appropriate Federal facility. This means the non-VA facility contacted the VA Transfer Coordinator, Administrative Officer of the Day, or designated staff responsible for accepting transfer of patients to VA (or other appropriate Federal facility) and documented such contact in the veteran's progress/physicians' notes, discharge summary, or other applicable medical record. 38 C.F.R. § 17.1005(c). No reimbursement or payment of services not previously authorized will be made when such treatment was procured through private sources in preference to available VA or government facilities. 38 C.F.R. § 17.130. Evidence An April 15, 2016 VA nursing note describes communication between VAMC Gainesville and the Veteran. He called to report that he was in the hospital two weeks prior with severe upper respiratory infection (URI). He stated that he felt as if he could not catch his breath. He reported shortness of breath and the "feeling his throat is closing on him." He was then "advised to seek medical treatment stat." An April 15, 2016 VA addendum note authored by a VA physician states that the physician agreed with the "recommendations to go to ER for immediate evaluation." An April 15, 2016 Flagler Hospital ER record illustrates that the Veteran presented with chest pains. He was seen at that hospital two weeks prior for chest pain and arm numbness. He called VA that day because the chest pain had not resolved, and he was experiencing shortness of breath. He reported pain between the shoulder blades. He also stated that he was advised to come to the ER. Pain assessment showed that the pain site was sternal, the pain was sharp and constant, with a severity level of 10 on a scale of 0 to 10. Infection was suspected. A CT angiogram of the chest was performed. The impression showed no central pulmonary emboli, aortic dilation or dissection, or pericardial effusion. A clinical tracking record illustrates that there was no VA care facility feasibly available to the Veteran on April 15, 2016. Analysis According to the September 2016 denial, the claim was denied because the supporting documentation needed to consider the claim was not received within 30 days from the date requested. According to the January 2017 denial the claim was denied for not being filed within 90-day timely filing limitation. First, the Board finds that the claim was filed timely and that there is nothing to indicate that the VAMC requested medical documentation from the Veteran, let alone that this documentation was filed untimely. Although the June 2017 statement of the case (SOC) notes a September 26, 2016 filing of the claims, neither the September 2016 or January 2017 denial references the date VAMC found the claim was filed, nor the date the supporting medical documentation was submitted. In addition, there is nothing in the record to show that VAMC made a request to the private provider or to the Veteran for additional information. Most significantly, the June 2017 SOC clearly concedes that the first claims the VAMC received were received prior to September 23, 2016, and that these initial claims were timely submitted. The SOC does, however, misapply the regulations as it concluded that the medical documentation was received well after the 90-day submission requirement. As reflected above the regulation requires that the initial claim, not the supporting medical documentation, be submitted within 90 days from the date the Veteran was discharged from the facility that furnished the emergency treatment. The SOC erroneously applied the 90-day limitation requirement in reference to the medical documentation. Given the aforementioned and resolving reasonable doubt in favor of the Veteran the Board finds that the claim was timely. Additionally, as the record does not illustrate a request by VAMC for additional documentation, the Board finds all substantive documentation was filed timely and therefore will adjudicate the claim on its merits. Upon review of the record and viewing the evidence in the light most favorable to the Veteran, the Board finds that the Veteran is entitled to payment of or reimbursement for the cost of medical services incurred at Flagler Hospital on April 15, 2016. Under 38 C.F.R. § 17.1002, the Board finds that the first element is met. The Veteran was treated at Flagler Hospital, a hospital that has a 24-hour emergency department. See https://www.flaglerhealth.org/services/emergency-care-center/. As such, Flagler Hospital is an emergency department or similar facility held out as providing emergency treatment to the public. The ultimate disposition of this case, therefore, rests upon whether the Veteran was treated for an emergency condition and whether federal facilities were feasibly available. Both medical and lay evidence may be considered in a prudent layperson evaluation for determining what constitutes a "medical emergency." That is, VA should weigh "the totality of the circumstances" to determine whether a prudent layperson would consider the situation emergent. Swinney v. Shinseki, 23 Vet. App. 257, 264-266 (2009). The Board will first analyze whether the Veteran's medical condition equated to an emergency condition and then will analyze whether there was a VA facility feasible available. Looking at the record of evidence, the Board finds that element two is met as the Veteran's condition was an emergency at the time of his arrival to Flagler Hospital, and the treatment received was 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. Given the Veteran's past medical history, his symptoms of chest pain and shortness of breath, getting himself to the closest ER on April 15, 2016 was consistent with the action of a prudent person in that he was experiencing potentially life-threatening symptoms. He was recently treated for severe URI. He was experiencing shortness of breath, so much so that he contacted VAMC Gainesville and was advised by a VA registered nurse to seek the nearest ER. Not only was he advised to seek treatment at an ER, but after a review of the file a VA physician clearly stated that she agreed with the VA registered nurse's recommendation. Upon entry to the ER he presented with chest pains, shortness of breath and a pain level of 10. Infection was suspected and additional testing was performed. The above-stated provisions are conjunctive, not disjunctive. Malone v. Gober, 10 Vet. App. 539 (1997) (finding that all three eligibility requirements under 38 U.S.C. § 1728 must be met). As such, the Board will now assess as to whether the third element has been met. Given the record of evidence, the Board finds that element three is also met as a VA facility was not feasibly available. The determination of whether a VA facility was "feasibly available" must be made after consideration of such factors as the urgent nature of the veteran's medical condition and the length of any delay that would have been required to obtain treatment from a VA facility. Cotton v. Brown, 7 Vet. App. 325, 328 (1995). Respecting the relative distance of the travel involved, the Board may take judicial notice of facts, as compared to evidence, which are not subject to interpretation. See Yeoman v. West, 140 F.3d 1443 (Fed. Cir. 1998); Dedicatoria v. Brown, 8 Vet. App. 441 (1995). Review of the record illustrates that at the time the Veteran went to the ER at Flagler Hospital he resided in Saint Augustine, FL. The Board notes that the distance from the Veteran's residence in Saint Augustine, FL on April 15, 2016 to Flagler Hospital was approximately 6.8 miles, while the distance from the Veteran's residence to the VA hospital in Gainesville, FL (Malcolm Randall VA Medical Center) was approximately 70.5 miles. The Board finds a VA facility was not feasibly available, given the emergent circumstances to include the symptoms the Veteran was experiencing and his past medical history. The Veteran not only used his rational common sense as a prudent person when assessing whether or not his condition was emergent, but he relied on the assessment of the VA nurse he consulted with prior to going to his nearest ER on April 15, 2016. The additional 63+ miles the Veteran would have needed to travel to go to the VAMC over the private ER is significant when addressing an emergency condition. As a VA facility was not feasible, payment or reimbursement of medical expenses pursuant to 38 U.S.C. § 1725 is warranted. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Talamantes, 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.