Citation Nr: 1417727 Decision Date: 04/21/14 Archive Date: 05/02/14 DOCKET NO. 11-03 937 ) 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 incurred at a non-VA medical facility on February 4, 2010. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active duty from August 1968 to August 1971. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2010 decision of the Department of Veterans Affairs (VA) Medical Center (VAMC) in Gainesville, Florida. The Veteran testified before the undersigned Veterans Law Judge at a January 2012 hearing at the VA Regional Office in St. Petersburg, Florida. A transcript of the hearing is of record. The record in this case consists of a physical claims file and an electronic file known as Virtual VA. FINDINGS OF FACT 1. On February 4, 2010, the Veteran was admitted to the Memorial Hospital Jacksonville, in Jacksonville, Florida, for emergency hospital care, testing, and treatment, and this emergency hospital care, testing, and treatment continued until the Veteran was released from that care on February 4, 2010. 2. A VA facility was not feasibly available to provide the necessary emergency hospital care, testing, and treatment on February 4, 2010. 3. The Veteran was enrolled in the VA Health Care System as of February 4, 2010, and had received treatment at a VA treatment facility during the 24 months preceding that date. 4. The Veteran is financially liable to the provider of the emergency hospital care, testing, and treatment on February 4, 2010. 5. The Veteran does not have insurance to defray all or part of the costs of the emergency hospital care, testing, and treatment on February 4, 2010. 6. The Veteran has no remedy against a third party for payment of all or part of the costs of the emergency hospital care, testing, and treatment on February 4, 2010. 7. The Veteran is not eligible for reimbursement pursuant to 38 U.S.C.A. 1728 (West 2002) for the emergency hospital care, testing, and treatment on February 4, 2010. CONCLUSION OF LAW The criteria payment of or reimbursement for unauthorized medical expenses incurred at a non-VA medical facility on February 4, 2010, have been met. 38 U.S.C.A. § 1725 (West 2002 & Supp. 2013); 38 C.F.R. §§ 17.1000 -08 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist As explained below, the evidence currently of record is sufficient to substantiate the Veteran's claim. Therefore, no further development is required before the Board decides this claim. II. Legal Criteria Payment of 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 & Supp. 2010) and 38 C.F.R. §§ 17.1000-100 2 (2011). Section 1725 was enacted as part of the Veterans Millennium Health Care and Benefits Act, Pub. L. 106-117, Title I, Subtitle B, § 111, 113 Stat. 1556 (1999) (hereinafter "Millennium Health Care Act" or "Millennium Act"). To be eligible for reimbursement under this authority the appellant has to satisfy all of the following criteria: (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 nature that a prudent layperson would have reasonably expected that delay in seeking 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 beforehand would not have been considered reasonable by a prudent layperson (as an example, these conditions could be met by evidence establishing that an appellant was brought to a hospital in an ambulance and the ambulance personnel determined that the nearest available appropriate level of care was not 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 appellant could not have been safely transferred to a VA or other Federal facility (the medical emergency lasts only until the time the appellant becomes stabilized); (e) At the time the emergency treatment was furnished, the appellant was enrolled in the VA health care system and had received medical services under authority of 38 U.S.C.A. Chapter 17 within the 24-month period preceding the furnishing of such emergency treatment; (f) The appellant is financially liable to the provider of emergency treatment for the treatment; (g) The appellant 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 appellant has coverage under a health-plan contract but payment is barred because of a failure by the appellant 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 appellant or provider against a third party for payment of such treatment; and the appellant 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 appellant's liability to the provider; and (i) The appellant is not eligible for reimbursement under 38 U.S.C.A. 1728 for the emergency treatment provided (38 U.S.C.A. 1728 authorizes VA payment or reimbursement for emergency treatment to a limited group of appellant's, primarily those who receive emergency treatment for a service-connected disability). 38 C.F.R. § 17.1002 (2013). III. Factual Background and Analysis The Veteran claims entitlement to reimbursement for emergency medical care received at Memorial Hospital Jacksonville, in Jacksonville, Florida, on February 4, 2010. The VAMC denied the claim on the basis that the treatment was not for an emergent condition. The Veteran has submitted statements and provided testimony before the undersigned to the effect that he had developed symptoms after eating something that he thought was a toxin or poison. He further asserted that he believed his health was in danger, and given such danger and the pain, nausea, and vomiting he was suffering at the time, he did not believe it prudent that he undertake the 80 mile trip to the VAMC in Gainesville, Florida, from his home in Jacksonville, Florida, or the trip from the Memorial Hospital Jacksonville in Jacksonville, Florida, to the VAMC in Gainesville, Florida, prior to examination, evaluation, and stabilization of his medical condition. The Board agrees. The Board finds that a reasonably prudent person in the Veteran's circumstances prior to his emergency admission to the Memorial Hospital Jacksonville, in Jacksonville, Florida, on February 4, 2010, and prior to his hospital discharge the same date, would have believed his or her life was in danger and that it would not be medically reasonable or prudent to attempt the 80 mile trip to Gainesville, Florida, rather than seeking and receiving the care he received at Memorial Hospital Jacksonville. The record also reflects that all of the other criteria for payment of or reimbursement for the expenses incurred on that date have been met. Accordingly, the Veteran is entitled to the benefit sought on appeal. (CONTINUED ON NEXT PAGE) ORDER Entitlement to payment of or reimbursement for unauthorized medical expenses incurred at a non-VA medical facility on February 4, 2010, is granted. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs