Citation Nr: 1400120 Decision Date: 01/02/14 Archive Date: 01/16/14 DOCKET NO. 12-08 096A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Gainesville, Florida THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred on July 13, 2011, at a private medical facility. ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1990 to November 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 administrative decision by the VA Medical Center (VAMC) located in Gainesville, Florida, which denied a claim for payment for or reimbursement of unauthorized medical expenses incurred on July 13, 2011, at a private medical facility. In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the electronic file on the Virtual VA and VBMS systems to ensure a complete assessment of the evidence. FINDINGS OF FACT 1. On July 13, 2011, the Veteran contacted a VA telecare nurse to report severe back pain. The VA nurse advised the Veteran to seek out emergency room treatment. 2. The Veteran went for unauthorized treatment at the nearest private facility where she was treated for acute sciatica. CONCLUSION OF LAW The criteria for payment or reimbursement of unauthorized medical expenses, incurred on July 13, 2011, at a private medical facility have been met. 38 U.S.C.A. §§ 1725 (West 2002); 38 C.F.R. §§ 17.1000-1008 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION When VA facilities are not capable of furnishing the care or services required, the Secretary may contract with non-Department facilities in order to furnish certain care, including hospital care or medical services for the treatment of medical emergencies which pose a serious threat to the life or health of a veteran receiving medical services in a Department facility until such time following the furnishing of care in the non-Department facility as the veteran can be safely transferred to a Department facility. 38 U.S.C.A § 1703(a)(3) (West 2002); 38 C.F.R. § 17.52 (2013). The admission of a veteran to a non-VA hospital at the expense of VA must be authorized in advance. 38 C.F.R. § 17.54 (2013); Malone v. Gober, 10 Vet. App. 539 (1997). In the case of an emergency that existed at the time of admission, an authorization may be deemed a prior authorization if an application is made to VA within 72 hours after the hour of admission. 38 C.F.R. § 17.54 (2013). Payment or reimbursement for emergency services for nonservice-connected conditions in non-VA facilities may be authorized under 38 U.S.C.A. § 1725 (West 2002) and 38 C.F.R. §§ 17.1000-1008 (2013). To be eligible for 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 that 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. 1728 for the emergency treatment provided (38 U.S.C. § 1728 authorizes VA payment or reimbursement for emergency treatment to a limited group of Veterans, primarily those who receive emergency treatment for a service-connected disability). 38 C.F.R. § 17.1002 (2013). If any one of the criteria is lacking, the benefit sought may not be granted. 38 U.S.C.A. § 1728 (West 2002); 38 C.F.R. § 17.120 (2013); Zimick v. West, 11 Vet. App. 45 (1998); Malone v. Gober, 10 Vet. App. 539 (1997). In addition, a veteran is required to file a claim within 90 days of the latest of the following: (1) July 19, 2001; (2) the date that the veteran was discharged from the facility that furnished the emergency treatment; (3) the date of death, but only if the death occurred during the stay in the facility that included the provision of the emergency treatment; or (4) the date the veteran finally exhausted, without success, action to obtain payment or reimbursement for the treatment from a third party. 38 C.F.R. § 17.1004 (2013). The Veteran alleges that she should be reimbursed for medical expenses on the grounds that her medical condition was emergent and no VA or other government facility was feasibly available during the period of treatment. She maintains that she had severe back pain with radiating pain down the legs, causing extreme difficulty walking. She further reported that she was unable to contact her primary care physician at the VA outpatient patient clinic because it was closed. In addition, she contends that the private medical facility was located eight miles away from her home, while the VA medical center was about 66 miles away. As such, she sought treatment at a private medical facility on July 13, 2011, and subsequently followed-up with a VA telecare nurse on July 14, 2011. The Board notes that the medical expenses incurred on July 13, 2011, at the private medical facility are not in dispute. She does not have any health insurance, and she filed the claim in a timely manner. She is also not service-connected for a back disability. On July 13, 2011, the Veteran contacted a VA telecare nurse stating that she started having severe low back pain, unrelieved with pain medication, for approximately two hours. It was noted that she reported that the pain level was a nine and that she was in tears. The VA telecare nurse further noted that the Veteran was about 90 minutes away from a VA emergency room and was unable to travel long distances due to the severity of the pain. The nurse recommended that the Veteran seek treatment from the VA emergency room. Following the telephone call with the VA nurse, the Veteran reported to the emergency room at a private medical facility with complaints of severe back pain with radiating pain down the legs. The emergency room physician noted a positive left straight leg lift and paralumbar tenderness on the left. The diagnosis was acute sciatica. It was further noted that the Veteran's condition was emergent. The next day, on July 14, 2011, the Veteran sought follow-up care through VA telecare. She reported that her back pain had "eased up some" and stated that she had been prescribed flexoril and a steroid. She requested x-rays from a VA facility. In her most recent April 2012 statement, the Veteran reported that, although her back pain had been present for a few days, she had not been in excruciating pain as on July 13, 2011 (i.e., the day she sought treatment at the private medical facility). She stated that she was concerned that the pain could have been related to a kidney disorder or other organ. Upon review of all the evidence of record, both lay and medical, the Board finds that the evidence is in equipoise as to whether the Veteran's medical condition was emergent at the time she sought private medical attention. The evidence reflects that she was in severe pain and had difficulty walking. She also reported that she was concerned that the pain may have been related to a kidney disorder as she had never experienced back pain as severe as on July 13, 2011. Moreover, the VA telecare nurse recommend that the Veteran seek emergency care and the emergency room physician noted that the Veteran's condition was emergent. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that it was reasonable and prudent for her to feel that a delay in seeking immediate medical attention would have been hazardous to life or health. Having determined that the Veteran's medical condition was emergent at the time she sought private medical attention, the remaining question before the Board is whether or not VA treatment was feasibly available to her at the time she received private treatment. She asserts that VA treatment was not feasibly available because the VA emergency room was too far away and she was unable to travel such a distance due to severe pain. Furthermore, the private medical facility was located only eight miles away from her home, while the VA medical center was about 66 miles away. She specifically informed the VA telecare nurse that she was unable to travel to the VA emergency room due to the severe pain in her back and difficulty walking. Further, her VA primary care physician was not available as the VA outpatient clinic was closed. For these reasons, and resolving all reasonable doubt in favor of the Veteran, the Board finds that at the time the Veteran sought private medical treatment, a VA facility was not feasibly available to her. In sum, the Board finds that the Veteran meets the criteria for payment or reimbursement of unauthorized medical expenses resulting from treatment for severe back pain and difficulty walking because the weight of the evidence shows that the treatment was for a nonservice-connected disability, for symptoms perceived to be so serious as to require immediate medical attention to avoid serious impairment, and because a VA facility was not reasonably available. The Board finds that the Veteran meets the criteria for reimbursement of treatment for severe back pain and difficulty walking on July 13, 2011, since the closest VA medical facility was 66 miles away and her primary care physician was unavailable, and because a reasonably prudent lay person would feel that time was of the essence and that the condition was emergent. Therefore, the Board concludes that the Veteran is eligible for reimbursement for treatment of severe back pain and difficulty walking on July 13, 201,1and the benefit sought on appeal is granted. The VCAA describes VA's duties to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In light of the favorable decision herein as to the issue on appeal, the Board finds that any deficiencies in notice were not prejudicial to the Veteran. ORDER Payment or reimbursement of unauthorized medical expenses incurred on July 13, 2011, at a private medical facility is granted. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs