Citation Nr: 21029612 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 17-39 463 DATE: May 14, 2021 ORDER Entitlement to payment or reimbursement for the cost of medical services at Venice Regional Medical Center (VRMC) on December 23, 2016 is granted. FINDING OF FACT The non-VA medical care provided on December 23, 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 Venice Regional Medical Center (VRMC) on December 23, 2016 have been met. 38 U.S.C. §§ 1703, 1725; 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120, 17. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran testified before the undersigned Veterans Law Judge in an April 2021 virtual conference hearing. The Veteran served on active duty in the United States Army from March 1969 to December 1970. He is seeking payment or reimbursement for the cost of medical services incurred at Venice Regional Medical Center (VRMC) on December 23, 2016. Contentions The Veteran presented to a private ER after experiencing swelling and pain in his hand that became infected several days post-surgery and two days after his cast was removed. He called VA and a VA nurse advised him to go to nearest ER. Days later he followed up with a VAMC and the VA doctor that treated him, after viewing a photo of what his hand looked like on December 23, 2016, confirmed that he was right to go to the ER and that the private ER provided him proper treatment for his infected hand. See notice of disagreement (dated erroneously as March 2016correct date is presumed to be March 2017). During the April 2021 hearing he provided additional details. He testified he had surgery performed on December 12, 2016 and had a cast on it for a few weeks. Two days after the cast was removed his hand got infected. It started swelling, it was painful, and became very hot. He called VA and a VA nurse told him to go to nearest ER. The closest VA ER was about one and a half hours away and since it was 9:00 p.m. the night before Christmas Eve, he went to the local ER. He was seen and prescribed medication. After Christmas, the infection was still bad, so he went to VA ER on December 28, 2016 to get additional treatment. 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 duodenal ulcer rated at 10 percent. As the Veteran is only service connected for one disability and that disability is not rated at 100 percent, he does not have a disability that is total and permanent in nature. As such, 38 U.S.C. § 1728 is not for application. Because the Veteran's private hospitalization 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. 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 A December 14, 2016 VA Surgery Operative note shows a preoperative and postoperative diagnosis of left small and ring finger dupuytren's disease. The surgical procedure was described as left small and ring finger palmer fasciectomy. A December 23, 2016 VA medical note illustrates that the Veteran contacted a VAMC and spoke to a VA registered nurse for approximately five to ten minutes, commencing at 8:30p.m. He reported that his left hand had swelling and redness and that the wound looked opened and he could see tissue in the wound. The VA nurse advised him to go to the ER for an evaluation. A December 23, 2016 VRMC ER record illustrates that the Veteran presented with a red, warm, swollen, and painful left hand. His past medical history was stated as "BPH", hypertension and urinary tract infection. His past surgical history was stated as hand surgery. His vitals were taken, and his blood pressure reading was 186/89 (systolic/diastolic). A culture of the wound was taken. He was administered medication. He was discharged to home/self-care. The impression was cellulitis of hand. Discharge instructions were listed as cellulitis, sutured wound care and he was prescribed medication (Bactrim DS 800-160mg oral tablet). The instructions also read that he should follow up with VA hospital in three days for a recheck of the wound. A December 26, 2016 VA ER triage note illustrates the Veteran presented with an infected surgical site to his hand. After examination, the VA physician diagnosed him with left hand wound dehiscence. Analysis 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 Venice Regional Medical Center (VRMC) on December 23, 2016. According to the April 2017 VA Statement of the Case, the claim was denied because the Veteran's treatment for his left hand was considered to be non-emergent and VA facilities were available. Under 38 C.F.R. § 17.1002, the Board finds that the first element is met. The Veteran was treated at VRMC, an acute care hospital that has a 24-hour emergency department. See https://www.veniceregional.com/emergency-department. As such, VRMC 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 VRMC, 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 surgical history and his symptoms of swelling and pain, getting himself to the closest ER on December 23, 2016 was consistent with the action of a prudent person in that he was experiencing potentially life-threatening symptoms. Having surgery recently on his left hand and having the cast removed just two days prior to experiencing the swelling and hotness, he was prudent in being concerned and then reaching out to VA for how to best proceed. He was actually advised by a VA nurse to seek treatment from an ER. Also, of note, during the hearing, he showed the Board a photograph of what his infected hand looked like and the undersigned VLJ took judicial notice that the photograph illustrated that the Veteran's left hand appeared significantly unwell, so much so that a prudent layperson would seek immediate medical attention. Therefore, when weighing the totality of the circumstances the Board finds that a prudent layperson would consider the situation emergent. 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. § 1725 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 VRMC he lived in Englewood, FL. The Board notes that the distance from the Veteran's residence in Englewood, FL on December 23, 2016 to VRMC was approximately 9.1 miles, while the distance from the Veteran's residence to the VA hospital in Bay Pines, FL (C.W. Bill Young VA Medical Center) was approximately 74.0 miles. The Board finds a VA facility was not feasibly available, given the emergent circumstances the Veteran was experiencing, to include how difficult and unsafe it would have been to drive himself 74 miles with the state his left hand was in on December 23, 2016. 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 December 23, 2016. The 70+ miles 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. KRISTI L. GUNN 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.