Citation Nr: 18124066
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 14-40 575
DATE:	August 3, 2018
ORDER
Payment of, or reimbursement for, medical expenses incurred at Heart of Florida Regional Medical Center (HFRMC) on September 24, 2013, is granted.
FINDING OF FACT
A prudent layperson would have reasonably expected that delay in seeking immediate medical attention for the Veteran’s condition on September 24, 2013, would have been hazardous to life or health; a VA-related medical facility would not have been feasibly available during his emergency, and an attempt to use one beforehand would not have been considered reasonable by a prudent layperson.
CONCLUSION OF LAW
The criteria for payment of, or reimbursement for, medical expenses incurred at HFRMC on September 24, 2013, have been met. 38 U.S.C. §§ 1725, 5107; 38 C.F.R. §§ 17.1000, 17.1002.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from November 1983 to November 1986. 
This appeal is before the Board of Veterans’ Appeals (Board) from a December 2013 decision of a Department of Veterans Affairs Medical Center (VAMC).  The Veteran received emergency room (ER) and hospital treatment at HFRMC on September 24, 2013.
Pursuant to 38 U.S.C. § 1725, under certain circumstances, VA shall reimburse a veteran for the reasonable value of emergency treatment furnished the veteran in a non-Department facility.  VA regulations at 38 C.F.R. §§ 17.1000 through 17.1008 constitute the requirements under 38 U.S.C. 1725 that govern VA payment or reimbursement for non-VA emergency services furnished to a veteran for nonservice-connected conditions.  38 C.F.R. § 17.1000.
Under such regulations, payment or reimbursement under 38 U.S.C. 1725 for emergency treatment will be made only if certain conditions are met, which are listed under 38 C.F.R. § 17.1002.  The only two such conditions at issue in this case are as follows:  
(b) The claim for payment or reimbursement for the initial evaluation and 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 (this standard would be met if there were an emergency medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) that a prudent layperson who possesses an average knowledge of health and medicine could reasonably expect the absence of immediate medical attention to result in placing the health of the individual in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part);
(c) A VA or other Federal facility/provider that VA has an agreement with to furnish health care services for veterans was not feasibly available and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson.
VA records dated on September 24, 2013, reflect that the Veteran called VA and spoke to a triage nurse, complaining of bilateral lower extremity swelling with pain, shortness of breath with activities and sleeping, and feeling like he was going to stop breathing when he slept.  He reported symptoms for 8 days, and requested an earlier appointment to see his VA doctor.  The recorded VA nurse’s comments indicate that the Veteran needed to be seen urgently, and he was instructed to go to a local Urgent Care, ER, or the Tampa VAMC.  The Veteran stated to the nurse that he would go to HFRMC.  He was instructed to follow up with VA after discharge.  The Veteran was also noted to have had a past medical history of diabetes, with current moderate to severe dyspnea and leg swelling.  
The Veteran presented to HFRMC with complains of insomnia, feelings of not being able to catch his breath, and bilateral leg swelling.  Radiology testing of the chest revealed pulmonary vessels at the upper limits of normal with no pulmonary edema or pleural effusion.  His diagnosis was probable sleep apnea.  Following his treatment at HFRMC, the Veteran again contacted VA for follow-up and further instruction on September 25.    
As reflected in his May 2014 notice of disagreement and October 2014 substantive appeal, the Veteran asserts that he called VA on September 24, 2013, to see if he could get an appointment to see his primary VA doctor.  According to the Veteran, on reporting his medical situation to the VA triage nurse, he was told to go to the nearest hospital and get checked out right away, and then to call Fee Basis to let them know about his visit, which he did as soon as he got home from the HFRMC.  
The Veteran’s claim must be granted.
The agency of original jurisdiction denied payment or reimbursement under 38 U.S.C. 1725 on the bases that the private hospital services provided were not so emergent that delay would have been hazardous to the Veteran’s life or health, and that a VA Medical Facility was readily available for care.
Prior to being seen at the HFRMC ER for breathing, leg swelling, and sleeping problems on September 24, 2013, on contacting VA it was noted by his triage nurse that the Veteran’s situation was urgent.  He was instructed to seek medical attention immediately, given his medical situation.  Given this, and resolving reasonable doubt in his favor, the Board finds that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention for his condition would have been hazardous to life or health.
The Veteran initially contacted VA and attempted to see his VA provider about his symptoms, before being instructed by the VA nurse to seek Urgent Care, ER treatment, or treatment at the Tampa VAMC immediately, given his medical situation.  The Board takes note that HFRMC is approximately 16 minutes from the Veteran residence, and the Tampa VAMC is approximately 1 hour and 5 minutes from it.  Under such circumstances, resolving reasonable doubt in the Veteran’s favor, the Board finds that a VA-related medical facility would not have been feasibly available during his emergency, and an attempt to use one beforehand would not have been considered reasonable by a prudent layperson.
Accordingly, payment of, or reimbursement for, unauthorized medical expenses incurred at HFRMC on September 24, 2013, must be granted.  See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
 
JONATHAN B. KRAMER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Andrew Mack, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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