Veteranclaims’s Blog

February 6, 2020

Single Judge Application; 38 U.S.C. § 1725(a) and (b); Emergency treatment; 38 C.F.R. § 17.1002 (2019); payment for emergency treatment will only be made if all of several conditions are met; assessment of whether the appellant’s statements were credible;

Filed under: Uncategorized — veteranclaims @ 2:35 pm

Excerpt from decision below:

“The statute defines “emergency treatment” as medical care or services furnished “when Department or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable” and “when such care or services are rendered in a medical emergency of such nature that a prudent layperson reasonably expects that delay in seeking immediate medical attention would be hazardous to life or health.” 38 U.S.C. § 1725(f)(1).”

“Although the Board acknowledged his statements regarding the nature and severity of his symptoms and found him competent,it then summarily concluded that “the probative value of the private medical records outweighs his statements.” R. at 10. Missing from the analysis is an explanation about why the medical records outweighed his competent lay testimony, including an assessment of whether the appellant’s statements were credible. This frustrates judicial review. See Buchanan, 451 F.3d at 1334-37; Allday, 7 Vet.App. at 527. “

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Designated for electronic publication only

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 19-0374

FRANK P.JONES,APPELLANT,

V.

ROBERT L.WILKIE,SECRETARYOF VETERANS AFFAIRS,APPELLEE.

Before MEREDITH, Judge.

MEMORANDUMDECISION

Note: Pursuant to U.S. Vet. App. R. 30(a),this action may not be cited as precedent.

MEREDITH, Judge: The appellant, Frank P. Jones, through counsel appeals a September 19, 2018, Board of Veterans’ Appeals (Board) decision that denied entitlement to reimbursement of unauthorized medical expenses incurred at the Central Peninsula Hospital and North Star Medical Imaging on January 1, 2014.Record (R.) at 3-11. This appeal is timely, and the Court has jurisdiction to review the Board’s decision pursuant to 38 U.S.C. §§7252(a) and 7266(a). Single-judge disposition is appropriate. SeeFrankel v.Derwinski, 1Vet.App. 23, 25-26 (1990). For the following reasons, the Court will vacate the Board’s decision and remand the matter for further proceedings consistent with this decision.

I. BACKGROUND

The appellant served on active duty in the U.S. Army from June 1974 to June 1976 and in the U.S. Navy from November 1976 to November 1978. R. at 79, 922. On December 23, 2013, he underwent shoulder surgery. R. at 123. On January 1, 2014, he visited Central Peninsula Hospital for complaints of dry mouth, which he had experienced for “the last fewdays,”a mild headache, and fatigue. R. at 140; see R. at 139-48. He underwent a head computed tomography scan and the 2 results were “negative.” R. at 144. He was discharged with a diagnosis of xerostomia1 and his bill was $4,174.52. R. at 114, 147. In February 2014, the Veterans Health Administration (VHA) denied reimbursement for the January 1, 2014, visit, in part, on the basis of “[n]on-[e]mergent [c]are.” R. at 102-03.After the appellant filed a Notice of Disagreement, VA issued a Statement of the Case continuing to deny reimbursement and he perfected his appeal. R.at 92-94, 98.In December 2015, the appellant testified at a Board hearing that, on the date he sought emergency treatment, “he had spent two days putting up with a headache and injuries to [his] neck at home. [He] tried everything [he could] at home to . . . get the pain down [so that he could] go in and see the doctor after the holidays. [He] could not stand it anymore. [He] was getting sick from it at home.” R.at 65. He also stated that he thought his headaches were related to a neck injury from 2008.R. at 66. The Board denied entitlement to reimbursement in a September 2018 decision, concluding that the appellant’s”condition was not 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” based primarily on the medical records from the date he visited the emergency room. R. at 10. This appeal followed.

II. ANALYSIS

The appellant argues that the Board provided inadequate reasons or bases for concluding that his January 1, 2014, emergency room visit was not of such a nature that a prudent layperson would have considered a delay in seeking treatment as hazardous to life or health, because it did not explain why it discounted his lay statements. Appellant’s Brief (Br.) at 4-11. Further, he asserts that VA failed to satisfy its duty to assist by not obtaining the medical records associated with his shoulder surgery prior to his emergency room visit. Id.at 11-12. The Secretary disputes those contentions and argues that the Court should affirm the Board’s decision. Secretary’s Br. at 5-8.Pursuant to 38 U.S.C. § 1725(a) and (b), the Secretary shall reimburse a veteran for the reasonable value of emergency treatment if the veteran is an active Department health-care participant, is personally liable for emergency treatment furnished to the veteran in a non-Department facility, and meets certain eligibility requirements. 38 U.S.C. §1725(a),

1Xerostomia is defined as “dryness of the mouth from salivary gland dysfunction, as in Sjögren syndrome.” DORLAND’SILLUSTRATED MEDICAL DICTIONARY2087 (32ded. 2012).

3

(b)(1)-(3).

The statute defines “emergency treatment” as medical care or services furnished “when Department or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable” and “when such care or services are rendered in a medical emergency of such nature that a prudent layperson reasonably expects that delay in seeking immediate medical attention would be hazardous to life or health.” 38 U.S.C. § 1725(f)(1).

VA’s implementing regulation directs that payment for emergency treatment will only be made if all of several conditions are met. 38 C.F.R. § 17.1002 (2019). Pertinent to this appeal, §17.1002(b) provide 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)[.]38 C.F.R. § 17.1002(b).It is the Board’s responsibility, as factfinder, to determine the credibility and weight to be given to the evidence. See Washington v. Nicholson, 19Vet.App. 362, 369 (2005); Owens v. Brown, 7Vet.App. 429, 433 (1995) (holding that the Board is responsible for assessing the credibility and weight of evidence and that the Court may overturn the Board’s decision only if it is clearly erroneous). When analyzing lay evidence, if the Board determines that lay evidence is competent and credible, it must weigh the evidence against other evidence of record, providing an appropriate statement of reasons or bases for its conclusions. See Buchanan v. Nicholson, 451F.3d 1331, 1334-37 (Fed. Cir. 2006); Allday v. Brown, 7Vet.App. 517, 527 (1995) (holding that, with any material issue of fact or law, the Board must provide a statement of the reasons or bases for its determination “adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court”); Gilbert v. Derwinski, 1Vet.App. 49, 56-57 (1990); see also38U.S.C. §7104(d)(1).Here, in denying the appellant entitlement to reimbursement, the Board reasoned that his condition was non-emergent and,thus, did not satisfy §17.1002(b). The Board relied on the medical records from the date of theappellant’s hospitalvisit, which reflect that he primarily 4

complained of dry mouth and fatigue, rather than a headache; the symptoms did not have a sudden onset; and the examiner had explained that dry mouth and fatigue were normal, considering that he was recovering from surgery,and his mild headache was “typical for someone who had forgotten to take their hypertensive medication.” R. at 9-10. The Board noted that the appellant did not complain of any symptoms as relating to his neck during his visit or the next day when he contacted a VA facility. R. at 10. The Board also discussed the appellant’s statements from the December 2015 Board hearing. R. at 9-10. In this regard, the Board noted”that he felt [his symptoms were] a ‘threatening problem,’ and his friends told him to seek medical treatment.” R. at 9. Further, the Board acknowledged that the appellant had “stated that his headache was the primary reason he sought treatment” and that “he thought his headache was related to his neck injury years prior.” R.at 9, 10.The Board then concluded: “In short, although the [appellant’s] statements are competent in this case, the Board finds that the probative value of the private medical records outweighs his statements.”R. at 10. The Court agrees with the appellant that the Board’s statement of reasons or bases is insufficient. See Appellant’s Br. at 5-11; see also Gutierrezv. Principi, 19 Vet.App. 1, 9(2004)(finding the Board’s reasoning flawed for failing to adequately discuss evidence in support of the appellant’s claim). Although the Board acknowledged his statements regarding the nature and severity of his symptoms and found him competent,it then summarily concluded that “the probative value of the private medical records outweighs his statements.” R. at 10. Missing from the analysisis an explanation about why the medical records outweighed his competent lay testimony, including an assessment of whether the appellant’s statements were credible. This frustrates judicial review. See Buchanan, 451 F.3d at 1334-37; Allday, 7 Vet.App. at 527. Accordingly, remand is necessary. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (“[W]here the Board … failed to provide an adequate statement of reasons or bases for its determinations, . . . a remand is the appropriate remedy.”).Given this disposition, the Court will not now address the remaining arguments and issues raised by the appellant. See Quirin v. Shinseki, 22 Vet.App. 390, 395 (2009) (noting that “the Court will not ordinarily consider additional allegations of error that have been rendered moot by the Court’s opinion or that would require the Court to issue an advisory opinion”); Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order).On remand, the appellant is free to submit additional 5evidence and argument on the remanded matter, including the specific arguments raised here on appeal, and the Board is required to consider any such relevant evidence and argument. See Kay v. Principi, 16Vet.App. 529, 534 (2002) (stating that, on remand, the Board must consider additional evidence and argument in assessing entitlement to the benefit sought); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court reminds the Board that “[a] remand is meant to entail a critical examination of the justification for the decision,” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991), and the Board must proceed expeditiously, in accordance with 38U.S.C. §7112.

III. CONCLUSION

After consideration of the parties’ pleadings and a review of the record, the Board’s September 19, 2018, decision is VACATED and the matter is REMANDED for further proceedings consistent with this decision.

DATED: February 5, 2020

Copies to: Glenn R. Bergmann, Esq.

VA General Counsel (02

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