Citation Nr: 21007650 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 15-10 315A DATE: February 10, 2021 ORDER Entitlement to payment or reimbursement of unauthorized, non-VA medical expenses incurred at Winchester Medical Center on April 30, 2014 through May 2, 2014, is granted. FINDING OF FACT The Veteran received private emergency treatment on April 30, 2014 through May 2, 2014, for a condition that a prudent layperson would have reasonably expected would have been hazardous to life or health if treatment was delayed; a VA emergency facility was not feasibly available. CONCLUSION OF LAW The criteria for payment or reimbursement for unauthorized medical expenses incurred at Winchester Medical Center on April 30, 2014 through May 2, 2014, have been met. 38 U.S.C. §§ 1703, 1725, 1728, 5107; 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Marine Corps from January 1986 to April 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 decision by the Martinsburg VA Medical Center (VAMC) in Martinsburg, West Virginia. The Veteran testified before the undersigned Veterans Law Judge in a hearing. The transcript has not yet been associated with the claims file, but for the reasons below, one is not necessary for a decision on the claim. Entitlement to payment or reimbursement of unauthorized, non-VA medical expenses incurred at Winchester Medical Center on April 30, 2014 through May 2, 2014, is granted. The Veteran seeks payment or reimbursement of the cost of medical services she received from Winchester Medical Center from April 30, 2014 through May 2, 2014. This treatment was not 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 claimed emergency treatment under 38 U.S.C. § 1728. See 38 C.F.R. § 17.120. Nonetheless, payment or reimbursement may be considered for claimed private emergency medical treatment under 38 U.S.C. § 1725. A threshold requirement for payment or reimbursement under this statute is that 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. 38 C.F.R. § 17.1002(b). In this case, the agency of original jurisdiction (AOJ) has denied the Veteran’s claim by reason of a VA facility being available. Thus, the Board finds that the requirements of 38 C.F.R. § 17.1002(a) and 17.1002(d)-(h) are met in this case, and not at issue. Consequently, the sole issues before the Board are whether the Veteran’s condition on April 30, 2014 through May 2, 2014, was emergent and whether VA facilities were feasibly available. For the following reasons, the criteria for reimbursement of medical expenses incurred by the Veteran at Winchester Medical Center from April 30, 2014 to May 2, 2014, have been met. The Veteran reported that in the days leading up to her hospital admission on April 30, 2014, she experienced the sudden onset of rapid, irregular heartbeats. See February 8, 2020 VA Form 21-4138. She also developed syncope that caused her to faint and fall down. After her fall, the Veteran sought out the nearest emergency room available at Shenandoah Memorial Hospital, which was half of a mile away from her home. Id. The Veteran reported that Shenandoah Memorial Hospital was not able to perform the cardiovascular tests she needed so she immediately asked to be transferred to the VAMC at Martinsburg due to concerns with the cost of care; however, she was told it was too far away for the emergency medical transport to take her. Id. Instead, they transferred her to the nearest hospital that was capable of performing the cardiovascular tests, Winchester medical Center. The Veteran has reported that although the VAMC wanted her to be transferred directly from Shenandoah to Martinsburg, this would not have been feasible because she was experiencing increasingly severe cardiac symptoms and she could not drive an hour from Shenandoah Memorial Hospital to Martinsburg during a cardiac event. Id. Turning to the medical evidence of record, emergency treatment records from Winchester Medical Center indicated that leading up to her arrival at the emergency department (ED) the Veteran was experiencing sinus congestion, palpitations, nausea, sternal chest pain, and at some point passed out on the floor. She also had headaches and leg pain. She contacted her primary care physician at VA, and he told her to go the emergency room (ER). On April 30, 2014 the Veteran arrived at the ED at Shenandoah and was found to have slightly abnormal Troponin and D-dimer levels. Additionally, CT scan of the head showed a pineal mass. Therefore, she was transferred to Winchester Medical Center for higher level care. During her hospital course, the Veteran underwent additional diagnostic testing, including echocardiogram, cardiac stress tests, and MRI of the brain. She was assessed with syncope, chest pain, and pineal mass. The Board notes that an April 30, 2014 transfer of service note indicated that once there was a bed at VA, the Veteran would be transferred to VA. In this regard, the Board finds this supports that a VA facility was not available/feasible at the time of her emergency treatment on April 30, 2014 as it reflects that a bed was not currently available and instead, noted she would be transferred in the future when a bed becomes available. Further, in the May 2014 discharge summary, the treating doctor at Winchester Medical Center, Dr. M stated the Veteran needs to be transferred to VA for her palpitations and cardiac workup, but “VA hospital refused to take her and I took a personal advice from a cardiologist here and to be started on low dose of beta blocker.” Dr. M. also noted that the Veteran has type 1 diastolic heart failure from echo report and was being started on Lasik because she is fluid overloaded. Moreover, the evidence suggest that it was not until May 2, 2014 that Dr. M was able to coordinate the Veteran’s transfer to VAMC for cardiology evaluation. Thus, she was discharged from Winchester Medical Center on May 2, 2014, at which point Dr. M. determined she could safely be discharged. Applying the statutory and regulatory framework to this case, the Board finds each criterion met. The provisions of 38 U.S.C. § 1725 provide for reimbursement if the 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. In light of the circumstances at the time, a prudent layperson could have reasonably expected that delay in seeking medical attention would have been hazardous to life or health and that VA treatment was not feasibly available for her condition. The nearest VA facility was approximately one hour away and a bed was not available until May 2, 2014; the hospital emergency transport would not take her that far and instead admitted her to nearby Winchester Medical Center; and the Veteran was experiencing severe symptoms associated with her diagnosed syncope, chest pain, and pineal mass, and she reasonably believed her condition required emergency medical treatment. See 38 C.F.R. § 17.1002 (stating that an emergency medical condition is one that manifests itself by acute symptoms of sufficient severity, including severe pain.) The Board finds that, under these circumstances, it was reasonable for the Veteran to seek treatment at a private hospital. For the above reasons, with reasonable doubt resolved in the Veteran’s favor, 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, the criteria for payment or reimbursement of the medical expenses incurred at Winchester Medical Center on April 30, 2014 through May 2, 2014, is granted. 38 U.S.C. § 1725(f)(1). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Schick, Associate 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.