Citation Nr: 1754898	
Decision Date: 11/30/17    Archive Date: 12/07/17

DOCKET NO.  16-35 988A	)	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 November 23, 2015, at Capital Regional Medical Center, Gadsden Campus.



REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

Appellant and his spouse




ATTORNEY FOR THE BOARD

Scott Shoreman, Counsel


INTRODUCTION

The Veteran had active service from November 1959 to February 1963.

This matter comes before the Board of Veterans' Appeals (Board) from a March 2016 decision of the Department of Veterans Affairs (VA) North Florida/South Georgia Health System in Gainesville, Florida.

In April 2017, the Veteran and his spouse testified at a videoconference hearing before the undersigned Veterans Law Judge.  A transcript is of record.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDINGS OF FACT

1. The Veteran was treated for an allergic reaction to a bee sting on November 23, 2015, at Capital Regional Medical Center, Gadsden Campus.

2. The Veteran reasonably believed that the services were emergent in nature such that delay would have been hazardous to life or health.

3. VA and other Federal facilities were not feasibly available.





CONCLUSION OF LAW

The criteria for establishing eligibility for payment or reimbursement for the cost of unauthorized medical treatment provided on November 23, 2015, at Capital Regional Medical Center, Gadsden Campus have been met.  38 U.S.C. § 1728 (2012); 38 C.F.R. § 17.120 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran has asserted that VA should pay for medical treatment he received for an allergic reaction to a bee sting on November 23, 2015, at Capital Regional Medical Center, Gadsden Campus.  Initially, the Veteran and VA concede that the Veteran was not previously authorized for use of the private facilities at any point in this case.

Initially, the Board notes that when VA facilities or other government facilities are not capable of furnishing economical hospital care or medical services because of geographic inaccessibility or are not capable of furnishing care or services required, VA may authorize or contract with non-VA facilities for care.  38 U.S.C. § 1703(a) (2012); 38 C.F.R. § 17.52(a) (2017).  However, the Veteran has never contended, and the evidence does not demonstrate, that he received prior VA written authorization for his private emergency room treatment on November 23, 2015. Therefore, 38 U.S.C. § 1703(a) does not apply in this case.

As provided for in 38 U.S.C. § 1725, when a veteran receives treatment at a non-VA facility without prior authorization, VA must reimburse the veteran for the reasonable value of emergency treatment furnished in a non-VA facility, or in lieu of that, make payment directly to a hospital or other health care provider that furnished such treatment on behalf of the veteran under the authority so long as certain statutory and regulatory requirements are met.  


The applicable statute and regulations provided that in the absence of prior appropriate authorization under 38 C.F.R. §§ 17.53 and 17.54, in order to be entitled to payment or reimbursement of unauthorized medical expenses incurred at a non-VA facility, a claimant must show:

 (a) 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) (formerly § 17.48(j)); and, 

 (b) The services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health; and, 

 (c) No VA or other Federal facilities were feasibly available and an attempt to use them beforehand would not have been reasonable.  38 U.S.C. § 1728 (2012); 38 C.F.R. § 17.120 (2017).

If any one of the foregoing requirements is lacking, the benefit sought may not be granted.  See Zimick v. West, 11 Vet. App. 45, 49 (1998); Malone v. Gober, 10 Vet. App. 539, 547 (1997); see also Melson v. Derwinski, 1 Vet. App. 334, 337 (the use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met).

A total disability rating based on individual unemployability due to service connected disabilities (TDIU) has been in effect since August 2006.  The Veteran therefore meets the first element necessary for reimbursement in this case.

The Veteran was treated at the Capital Regional Medical Center, Gadsden Campus, on November 23, 2015, for an allergic reaction to a bee sting on the lower side of the tongue.  The treatment records note that his tongue was swollen and that he had a known allergy to bee sings.  The symptoms improved within a half hour after medication was administered.  

The Veteran wrote in June 2016 that he was deathly allergic to bee stings and that by the time he arrived at the emergency room his tongue was "so swollen he had difficulty breathing."  The Veteran testified at the April 2017 Board hearing that on November 23, 2015, he unknowingly swallowed a bee that was in his drink, and that "within 15 minutes there was swelling and he had difficulty breathing."  He got treatment at the nearest emergency room, which was 11 miles away.  The nearest VA clinic was 40 miles away.  The Veteran further testified that he was allergic to bee stings and had never been prescribed an EpiPen.  He also testified that he paid the bill from Capital Regional Medical Center, Gadsden Campus because he did not want his credit to be hurt.

The Board finds that the Veteran's allergic reaction to a bee sting was a medical emergency of such nature that delay would have been hazardous to life or health.  He is considered competent to report that his tongue quickly got swollen after the bee sting, and the Board finds his testimony credible.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Furthermore, given the medical emergency, it would have been unreasonable for the Veteran to go 40 miles to the nearest VA facility when Capital Regional Medical Center, Gadsden Campus, was 11 miles away.  See 38 U.S.C. § 1728; 38 C.F.R. § 17.120.  The evidence, at a minimum, gives rise to a reasonable doubt on the matter.  38 U.S.C. § 5107(b) (2012).  Therefore, the appeal for reimbursement of unauthorized medical expenses is allowed.


ORDER

The payment or reimbursement of the unauthorized medical expenses incurred by the Veteran on November 23, 2015, at the Capital Regional Medical Center, Gadsden Campus, is granted.




____________________________________________
Michael J. Skaltsounis
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs