Citation Nr: 1605418 Decision Date: 02/11/16 Archive Date: 02/18/16 DOCKET NO. 14-24 253A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Cincinnati, Ohio THE ISSUE Entitlement to payment or reimbursement for medical care provided by a non-VA medical facility incurred on October 25, 2013. ATTORNEY FOR THE BOARD C. Bruce, Counsel INTRODUCTION The appellant served on active duty from July 1970 to January 1972. This case is before the Board of Veterans' Appeals (Board) on appeal from a July 2014 decision by the VA Healthcare System of Ohio (VA Medical Center in Cincinnati, Ohio). FINDING OF FACT The Veteran received private emergency treatment on October 25, 2013, for a condition that a prudent layperson would have reasonably expected would have been hazardous to life or health if treatment was delayed. No VA emergency facility was feasibly available. CONCLUSION OF LAW The criteria for reimbursement or payment of private medical expenses incurred for treatment on October 25, 2013, have been met. 38 U.S.C.A. §§ 1725, 1728 (West 2002); 38 C.F.R. §§ 17.120, 17.1000-17.1008 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As the Board's decision herein to grant reimbursement or payment of private medical expenses incurred for treatment on October 25, 2013, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted November 9, 2000 (codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2008)) and the implementing regulations. Merits of the Claim The Veteran seeks payment or reimbursement of unauthorized medical services in connection with hospital treatment received at Mercy Hospital, a non-VA hospital, from October 25, 2013. A Veteran may obtain reimbursement for medical expenses rendered at a non-VA facility under either 38 U.S.C.A. § 1725 or 38 U.S.C.A. § 1728. The criteria set forth in 38 U.S.C.A. § 1725 provide general authority for reimbursement for the reasonable value of emergency treatment furnished in a non-VA facility for those veterans who are active VA health-care participants (enrolled in the annual patient enrollment system and recipients of VA hospital, nursing home, or domiciliary care under such system within the last 24-month period) and who are personally liable for such treatment, and not eligible for reimbursement under the provisions of 38 U.S.C.A. § 1728. See 38 U.S.C.A. § 1725 (West 2002); 38 C.F.R. § 17.1002 (2015). The Veteran is not currently service connected for any disability. Therefore there is no evidence or allegation that the medical treatment received on October 25, 2013, involved care for a service-connected disability or a nonservice-connected disability aggravating an adjudicated service-connected disability. Additionally, the Veteran does not have a total disability permanent in nature resulting from a service-connected disability, and was not participating in a rehabilitation program under 38 U.S.C. Chapter 31. Thus, the provisions of 38 U.S.C.A. § 1728 do not apply. "Emergency treatment" under the statute is defined as medical care or services furnished when (A) VA or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable; (B) 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; and (C) only until such time as the veteran can be transferred safely to a VA or other Federal facility. 38 U.S.C.A. § 1725(f)(1). The implementing regulation, 38 C.F.R. § 17.1002, states that emergency services exist where 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, and indicates that this standard is met if there is 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 would 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. As a reference point, an emergency is also defined as "a sudden, generally unexpected occurrence or set of circumstances demanding immediate action." Hennessey v. Brown, 7 Vet. App. 143, 147 (1994) (citations omitted). In order to obtain reimbursement for non-VA emergency services furnished to a veteran for nonservice-connected conditions, all of the criteria in § 1725 and its implementing regulations must be satisfied. See 38 C.F.R. §§ 17.100-17 .1008. Additionally, regulations provide that a VA facility may be considered as not feasibly available when the urgency of the applicant's medical condition, the relative distance of the travel involved, or the nature of the treatment required makes it necessary or economically advisable to use public or private facilities. 38 C.F.R. §§ 17.52, 17.53 (2015). No reimbursement or payment of services not previously authorized will be made when such treatment was procured through private sources in preference to available Government facilities. 38 C.F.R. § 17.130. On October 25, 2013, the Veteran presented to the emergency department of Mercy Hospital Anderson, a non-VA hospital, with complaints of a severe blood clot in his right leg. The Veteran stated that he had been treated for the previous three weeks for this condition by a VA doctor at the Clermont County Community Based Outpatient Clinic (CBOC). On October 25, 2013, the Veteran's condition increased in severity and became an emergency condition. The Veteran's leg was severely swollen due to the blood clot. The Veteran stated that as the clinic was about to close, his treating physician told him to report to Mercy Hospital Anderson's emergency room, immediately. The June 2014 statement of the case noted that the Veteran had been told to go to the VA emergency room at the Cincinnati VA medical center (VAMC), rather than the non-VA Mercy Hospital Anderson, and that the Veteran refused. There was no evidence of record that the Veteran refused, but regardless, the emergency situation warranted that the Veteran seek care at the nearest facility. After reviewing the locations of the Cincinnati VAMC and the non-VA Mercy Hospital Anderson relative to the Veteran's home, it was determined that the VAMC was at least three times further away than the non-VA hospital. The Board finds that the distance involved made it not feasibly available for the treatment of the Veteran's blood clot in his right leg. The provisions of 38 U.S.C.A. § 1725 provide for reimbursement if the 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. In light of the circumstances at the time, the Board finds that a prudent layperson could have reasonably expected that delay in seeking medical attention on October 25, 2013, would have been hazardous to life or health. The Board finds that, under these circumstances, it would be unreasonable to expect the Veteran to forgo treatment at the non-VA hospital that is located within 10 minutes of the place he resides, in favor of the nearest open VAMC with emergency services which is located more than 30 minutes from his home. Resolving any doubt in the Veteran's favor, the criteria for payment or reimbursement of the medical expenses incurred at Mercy Hospital Anderson on October 25, 2013, the date of emergency room care, is granted, under the provision of 38 U.S.C.A. § 1725. ORDER Payment or reimbursement of unauthorized, non-VA medical expenses incurred on October 25, 2013, is granted. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs