Citation Nr: 21020838 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 18-22 941A DATE: April 8, 2021 ORDER Entitlement to payment or reimbursement of unauthorized medical expenses incurred at Texas Health Fort Worth and THR Harris Methodist Fort Worth Emergency Room (ER) on September 7, 2017, is granted. FINDING OF FACT On September 7, 2017, the Veteran received medical treatment at a non-VA facility for his service-connected bilateral upper extremity radiculopathy and cervical spine degenerative arthritis and intervertebral disc syndrome (IVDS) with musculoskeletal contraction type headache and the treated condition was one that a prudent layperson in the circumstances would expect to be hazardous to health if medical attention was delayed and seeking treatment at a VA or federal facility was not feasibly available. CONCLUSION OF LAW The criteria for reimbursement of unauthorized, non-VA medical expenses incurred at Texas Health Fort Worth and THR Harris Methodist Fort Worth ER on September 7, 2017, have been met. 38 U.S.C. §§ 1703, 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 from October 1981 to May 1987 and from September 1990 to February 2015. The Veteran testified before the undersigned at a January 2021 Board hearing. A transcript is of record. 1. Entitlement to payment or reimbursement of unauthorized medical expenses incurred at Texas Health Fort Worth and THR Harris Methodist Fort Worth ER on September 7, 2017, is granted. The Veteran claims reimbursement for non-VA medical expenses incurred for treatment for his service-connected bilateral upper extremity radiculopathy and cervical spine degenerative arthritis and IVDS with musculoskeletal contraction type headache on September 7, 2017. See January 2021 Board Hearing Transcript at 2. Generally, the admission of a veteran to a non-VA hospital at VA expense must be authorized in advance. See 38 C.F.R. § 17.54. Here, the Veteran’s treatment at the non-VA facility was not authorized in advance as there is no indication that VA authorization was obtained prior to this particular admission, or within 72 hours thereafter, for the medical services provided to the Veteran for which he is now seeking payment or reimbursement. Congress, however, has authorized the reimbursement or payment for unauthorized emergency medical treatment of veterans, under two statutory provisions, 38 U.S.C. §§ 1725 and 1728. Section 1728 applies to veterans who (among other criteria) have been granted service connection for at least one disability at the time they sought treatment. The Veteran is service connected for bilateral pes planus and bilateral plantar fasciitis with left plantar calcaneal spur; posttraumatic stress disorder (PTSD) and mild neurocognitive disorder; left upper extremity radiculopathy; right upper extremity radiculopathy; left knee osteoarthritis; right knee osteoarthritis; right shoulder osteoarthritis; chronic left wrist sprain; cervical spine degenerative arthritis and intervertebral disc syndrome (IVDS) with musculoskeletal contraction type headache; lumbar spine degenerative arthritis and IVDS; right hip impingement and residual right hamstring strain with limitation of extension; left hip impingement and residual right hamstring strain with limitation of extension; bilateral pinguecula; pseudofolliculitis barbae; right lower extremity radiculopathy; left lower extremity radiculopathy; chronic right long finger DIP/PIP joint sprain; right hip impingement and residual right hamstring strain with limitation of flexion; left hip impingement and residual right hamstring strain with limitation of flexion; right hallux valgus and first MTP degenerative arthritis; left hallux valgus and first MTP degenerative arthritis; left ear hearing loss; hemorrhoids; erectile dysfunction; scar, status post, umbilical hernia; and traumatic brain injury (TBI). See March 2016 rating code sheet. As such, 38 U.S.C. § 1728 is applicable, and no further discussion of payment under § 1725 (which governs payment where a veteran has not been granted service connection or is not in receipt of total compensation) is necessary. Under 38 U.S.C. § 1728(a) and 38 C.F.R. § 17.120, VA may reimburse veterans for unauthorized medical expenses incurred in non-VA facilities where the care and services rendered were for an adjudicated service-connected disability, the services rendered were for emergency treatment of a condition 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 when seeking treatment at a VA or federal facility was not feasibly available. All three requirements must be met before payment is authorized. Zimick v. West, 11 Vet. App. 45, 49 (1998). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107. In this case, the agency of original jurisdiction (AOJ) has denied the claim for reimbursement, finding that a VA facility was available. See January 2018 AOJ decisions. Based on a review of the available record, the Board finds that the criteria for reimbursement of medical expenses for Non-VA medical treatment on September 7, 2017, have been met. Indeed, as explained below, it is found that the care sought on December 7, 2017, was for an emergent condition and that VA facilities were not available. The Veteran has been in receipt of service connection for cervical spine degenerative arthritis and IVDS with musculoskeletal contraction type headache since May 1987 and bilateral upper extremity radiculopathy since March 2015. See March 2016 rating code sheet. The Veteran contends that he received regular treatment for his service-connected disabilities at the VA clinic in Fort Worth. See January 2021 Board Hearing Transcript at 2-3. He testified that on September 7, 2017 he was experiencing severe chest pain and arm pain and called the VA clinic in Fort Worth around 5:30 in the evening and was told by the nurse that his symptoms he was describing was a heart attack and he needed to go to the nearest ER as soon as possible. Id. at 2-3. He testified that the nearest VA ER is in Dallas, which is a 50-mile drive from where he was located. The Veteran testified that the VA nurse told him to go to the nearest ER, which was a private hospital in Fort Worth. Id. at 3. He testified that the nurse at the VA clinic in Fort Worth told him the VA facility does not have an ER and so he needed to go to his local ER, which was a private hospital. Id. at 4. Review of the medical evidence reveals that on September 7, 2017, the Veteran presented to the emergency department (ED) at Texas Health Fort Worth with numbness and tingling down the right arm and neck pain at 5:58 p.m. See September 2017 emergency provider notes. Diagnostic testing was ordered, including a CT of the head, CT of the cervical spine, and EKG. The clinical impression was paresthesias of the right arm and cervical degenerative disc disease. He was treated with medication and discharged home in good condition. Applying the regulatory framework to this case, the Board finds each criterion met. In light of the circumstances at the time, the Board finds that 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 his condition, as he was told by his local VA clinician that he was having a heart attack and should seek emergency care at his local private ER. Further, his regular VA clinic does not have an emergency room and there was no nearby VA facility with emergency services available to treat him. See January 2021 Board Hearing Transcript at 2-4. The Veteran was experiencing severe symptoms of radiating arm pain, neck pain, and chest pain. The Veteran reasonably believed his 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. Accordingly, the Board finds that affording the Veteran the benefit of any reasonable doubt, the weight of the competent and probative evidence is at least in equipoise as to whether a reasonably prudent person would have believed that further delay would have been hazardous to life or health. Accordingly, the Board concludes that the criteria for the payment or reimbursement of unauthorized, non-VA medical expenses incurred at Texas Health Fort Worth and THR Harris Methodist Fort Worth ER on September 7, 2017, have been met. 38 U.S.C. § 1728; 38 C.F.R. §§ 17.120. M. Mills Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Schick, 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.