Citation Nr: 23022158 Decision Date: 04/12/23 Archive Date: 04/12/23 DOCKET NO. 19-08 475 DATE: April 12, 2023 ORDER Entitlement to medical expense reimbursement for non-VA medical care on January 17, 2018 at FHN Memorial Hospital is granted. FINDING OF FACT On January 17, 2018, the Veteran obtained non-VA medical treatment for an emergency medical condition and his actions were consistent with that of a prudent layperson. CONCLUSION OF LAW The criteria have been met for medical reimbursement of the January 17, 2018 episode of care at the FHN Memorial Hospital emergency room. 38 U.S.C. §§ 1725, 5107; 38 C.F.R. §§ 17.53, 17.120, 17,121, 17.1000-17.1008. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from December 1972 to January 1975. This matter comes before the Board of Veterans' Appeals (Board) from a February 2018 administrative decision by Veterans Health Administration's (VHA) Chief Business Office. In May 2022, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. The Veteran contends his high blood pressure and atrial fibrillation was urgent on January 17, 2018 and he is seeking medical reimbursement for his non-VA emergency room visit. The Veteran's claim was denied as non-emergent care and it did not meet the prudent layperson standard of an emergency. The Veterans Millennium Health Care and Benefits Act provides general authority for reimbursement for the reasonable value of emergency treatment furnished in a non-VA facility to those Veterans who are active VA health-care participants (i.e., enrolled in the annual patient enrollment system and recipients of a VA hospital, nursing home, or domiciliary care under such system within the last 24-month period) and who are personally liable for such non-VA treatment and not eligible for reimbursement under the provisions of 38 U.S.C. § 1728. 38 U.S.C. § 1725; 38 C.F.R. §§ 17.1000-1008. Since 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. In this case, the statutory criterion at issue is whether the Veteran's condition was an emergency. The other criteria, including that services were provided in an emergency department, the Veteran was enrolled in a VA health system and had received services within the 24 months preceding, he is financially liable to the provider, he does not have any other health plan coverage, the incident was not due to an accident or work-related, a VA facility was not available, and he is not eligible for reimbursement under 38 U.S.C. § 1728 for the emergency treatment provided are all met. The Veteran advised in a Statement in Support of Claim that he contacted the VA to notify them he was having high blood pressure and he was concerned about his atrial fibrillation. He contends the VA advised him to go to the closest emergency room given his cardiac disabilities. The Veteran testified in May 2022 at his Board hearing. He testified that on January 17, 2018, he thought he was in atrial fibrillation and his blood pressure was high. He advised he took his medication at home and waited awhile but the symptoms did not improve. He reported he took more medication but at the time, his heart rate was over 200 and he felt very sick. He contends he and his wife contacted the VA and they advised him to go to the closest emergency room, so his wife took him to the non-VA hospital. The Veteran detailed his emergency room visit and noted he underwent an EKG and other cardiac imaging. The Veteran reported that he felt sick and thought he was going to pass out. He stated his wife had to help him into the car and he testified that his wife thought he was in danger of dying. The Veteran advised he began to feel better during his emergency room visit and the doctor asked him if he had any other health issues. The Veteran said he mentioned that he had diarrhea for about a month, but that was not the reason he went to the emergency room. The Veteran clarified that he went to the non-VA emergency room because of his atrial fibrillation and high blood pressure. At his hearing, the Veteran also reported the non-VA emergency room was only five blocks from his home but the VA facility was an hour and a half away from his home. The Veteran's private treatment records from January 17, 2018 reflect the Veteran's stated complaints included shortness of breath and elevated blood pressure, which is consistent with the Veteran's statements during the appeal period and his hearing testimony. The private records further note the Veteran advised his blood pressure was high and he came to the emergency room for evaluation. It was noted he had diarrhea for three weeks. The ER summary noted the Veteran was discharged feeling better and that his blood pressure had normalized. The ER doctor noted there were some other cardiac concerns and abnormalities to consider and advised if his condition worsened, to return to the emergency room. The Veteran's VA treatment records reflect the VA was notified of the non-VA emergency room visit on January 17, 2018 and the Veteran's chief complaint was shortness of breath and high blood pressure. The denial letter stated the claim was denied as the Veteran's non-VA emergency room visit was determined to be non-emergent. The statement of case (SOC) noted the Veteran was seen in the ER for abdominal pain and diarrhea for three weeks and there were no concerns of cardiac issues mentioned on arrival. However, the evidence of record clearly reflects the Veteran was seen in the emergency room for shortness of breath and high blood pressure. 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) (emphasis added). The Board concludes that in evaluating the totality of the evidence (both medical and lay evidence of record), the non-VA treatment the Veteran received on January 17, 2018 constitutes a medical emergency under the prudent layperson standard. The Veteran clearly stated that given the extent of his shortness of breath and high blood pressure and his past experiences with atrial fibrillation, he felt his condition was an emergency. The Board concurs, under the prudent layperson standard, an actual medical emergency existed in this situation. The denial letter did not reference whether a VA facility was available, but in the SOC, the VA noted a VA facility was available. Whether a VA facility was "feasibly available" is determined 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, 327-28 (1995). Other factors to consider include whether a prudent layperson would consider an attempt to use a VA facility beforehand or obtain prior VA authorization for the services required would have been reasonable, sound, wise, or practicable, or whether treatment had been or would have been refused. Regarding 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). At his Board hearing, the Veteran reported the closest VA facility was an hour and a half away but the non-VA emergency room was five blocks from his home. As to geographical distance, applying Google Maps, the Madison VA facility is 64.4 miles from the Veteran's home. The non-VA facility is less than one mile from the Veteran's home. Given the Veteran's reported symptoms and distance of the VA facility from his home, it is determined VA facilities were not feasibly available for treatment. As such, the Veteran is deemed to have met the requirements for medical reimbursement under 38 U.S.C. § 1725, and the appeal is accordingly granted. Nathaniel Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Mouzakis, 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.