Citation Nr: 1314493	
Decision Date: 05/02/13    Archive Date: 05/15/13

DOCKET NO.  10-47 081A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Gainesville, Florida


THE ISSUE

Entitlement to payment of or reimbursement for unauthorized medical expenses for emergency room treatment received at The Villages Regional Hospital on October 15, 2010.  


ATTORNEY FOR THE BOARD

D. Van Wambeke, Counsel


INTRODUCTION

The Veteran served on active duty from January 1969 to December 1972.  

This appeal comes to the Board of Veterans' Appeals (Board) from an October 2010 determination of the Department of Veterans Affairs Medical Center (VAMC) in Gainesville, Florida.  

The Veteran requested a hearing before the Board in his December 2010 VA Form 9.  The RO informed the Veteran that his requested hearing had been scheduled for January 2012.  See December 2011 letter.  The Veteran, however, failed to report for the scheduled hearing without explanation.  He has not requested that the hearing be rescheduled.  Therefore, the Board deems the Veteran's request for a hearing to be withdrawn.  38 C.F.R. § 20.704 (2012).


FINDINGS OF FACT

1.  The Veteran was the recipient of VA hospital care within the 24-month period prior to the treatment rendered on October 15, 2010.  

2.  The Gainesville VA Medical Center was not feasibly available at the time of the treatment rendered on October 15, 2010.  

3.  The initial evaluation and treatment received by the Veteran on October 15, 2010, 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.  

4.  The Veteran's coverage under a health-plan contract had been exhausted prior to the treatment rendered on October 15, 2010.  

5.  The Veteran is not eligible for payment or reimbursement for these expenses under 38 U.S.C.A. § 1728 (West 2002).



CONCLUSION OF LAW

The criteria for entitlement to payment of or reimbursement for unauthorized medical expenses for emergency room treatment received at The Villages Regional Hospital on October 15, 2010, have been met.  38 U.S.C.A. §§ 1725, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 17.120, 17.121, 17.1000-1002 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran is seeking entitlement to payment of or reimbursement for unauthorized medical expenses for emergency room treatment received for biliary colic on October 15, 2010, at The Villages Regional Hospital in The Villages, Florida.  The VAMC in Gainesville, Florida, denied the claim on the basis that the Veteran had other health insurance coverage.  See October 2010 letter.  

Reimbursement for or payment of unauthorized medical expenses may be made pursuant to 38 U.S.C.A. § 1728.  Generally, in order to be entitled to payment of or reimbursement for medical expenses incurred at a non-VA facility, a claimant must satisfy a number of conditions, including that the care and services rendered were either: (1) for an adjudicated service-connected disability, or (2) for a nonservice-connected disability associated with and held to be aggravating an adjudicated service-connected disability, or (3) for any disability of a Veteran who has a total disability, permanent in nature, resulting from a service-connected disability, or (4) for any injury, illness, or dental condition in the case of a Veteran who is participating in a rehabilitation program and who is medically determined to be in need of hospital care or medical services for reasons set forth in 38 C.F.R. § 17.47(i).  The Veteran, however, is not service connected for any disability.  Therefore, he is not entitled to payment or reimbursement by VA under 38 U.S.C.A. § 1728; 38 C.F.R. § 17.120.  

In this case, reimbursement for unauthorized medical expenses may be made pursuant to 38 U.S.C.A. § 1725 and 38 C.F.R. §§ 17.1000-1003.  Section 1725 was enacted as part of the Veterans Millennium Health Care and Benefits Act, Public Law 106- 177, the provisions of which became effective on May 29, 2000.  To be eligible for payment or reimbursement under this authority, the Veteran has to satisfy all of the following conditions:

(a) The emergency services were provided in a hospital emergency department or a similar facility held out as providing emergency care to the public;

(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 was not feasibly available and an attempt to use them before hand would not have been considered reasonable by a prudent layperson (as an example, these conditions would be met by evidence establishing that a veteran was brought to a hospital in an ambulance and the ambulance personnel determined that the nearest available appropriate level of care was at a non-VA medical center);

(d) The claim for payment or reimbursement for any medical care beyond the initial emergency evaluation and treatment is for a continued medical emergency of such a nature that the veteran could not have been safely transferred to a VA or other Federal facility;

(e) At the time the emergency treatment was furnished, the Veteran was enrolled in the VA health care system and had received medical services under authority of 38 U.S.C. Chapter 17 within the 24-month period preceding the furnishing of such emergency treatment;

(f) The Veteran is financially liable to the provider of emergency treatment for that treatment;

(g) The Veteran has no coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the emergency treatment (this condition cannot be met if the veteran has coverage under a health-plan contract but payment is barred because of a failure by the veteran or provider to comply with the provisions of that health-plan contract, e.g., failure to submit a bill or medical records within specified time limits, or failure to exhaust appeals of the denial of payment);

(h) If the condition for which the emergency treatment was furnished was caused by an accident or work-related injury, the claimant has exhausted without success all claims and remedies reasonably available to the Veteran or provider against a third party for payment of such treatment; and the veteran has no contractual or legal recourse against a third party that could reasonably be pursued for the purpose of extinguishing, in whole or in part, the veteran's liability to the provider;

(i) The Veteran is not eligible for reimbursement under 38 U.S.C.A. § 1728 for the emergency treatment provided.

See 38 C.F.R. § 17.1002.

In this case, the evidence of record indicates that the Veteran received emergency treatment at The Villages Medical Center on October 15, 2010, with a chief complaint of abdominal pain that had started at midnight and had gotten better but was constant.  The pain was described as sharp and associated with nausea and with a moderate to severe degree of severity.  Nothing had relieved it.  The clinical impression was biliary colic.  See emergency physician record.  

The Veteran contends that his condition was emergent in nature as he suspected a possible heart attack, and that he initially went to the new VA Medical Center in The Villages, but it was closed.  He asserts that it would have been extremely difficult to travel one and one-half hours away to the Gainesville VAMC in his condition and that the only sensible option was to go to the emergency room at The Villages Medical Center, which was five minutes away.  See November 2010 notice of disagreement.  The Board finds the assertions made by the Veteran to be competent and credible.  

The Board finds that the evidence of record supports a finding that the Veteran is entitled to payment of or reimbursement for the expenses incurred at The Villages Regional Hospital on October 15, 2010.  

The evidence of record shows that the Veteran was enrolled in the VA Health Care system at the time the subject medical care was rendered.  In addition, the Veteran credibly asserts that at the time he needed emergency treatment, the VA facility in The Villages, Florida, was closed, and the Gainesville VAMC was one and one-half hours away, such that it can be said that a VA or other Federal facility/provider was not feasibly available.  Moreover, the Board finds that there is credible evidence that the initial evaluation and treatment received by the Veteran at The Villages Regional Hospital on October 15, 2010, 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.  

The Board acknowledges that there is evidence the Veteran had health insurance coverage and that that this was the basis for the denial of the claim.  The Veteran contends, however, that the basic insurance provided by third party insurance carrier Darden (UMR) was exhausted for the year in July 2010, that this is the only insurance provided to him, and that he does not qualify for other insurance through Darden because he has not had a two year employment service with an average of 30 hours per week.  See December 2010 VA Form 9.  In support of his assertions, the Veteran has submitted information provided by his health insurance pertaining to coverage.  The Board also finds these assertions to be competent and credible.  

As the Veteran's coverage through third party insurance carrier Darden (UMR) had been exhausted prior to his receipt of services rendered on October 15, 2010, he had no coverage for the emergency treatment on that date.  

Based on the foregoing, the Board resolves all reasonable doubt in finding that the Veteran met all of the criteria required for payment of or reimbursement for medical expenses incurred at The Villages Regional Hospital on October 15, 2010.  


ORDER

Entitlement to payment of or reimbursement for unauthorized medical expenses for emergency room treatment received at The Villages Regional Hospital on October 15, 2010, is granted.



____________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs