Citation Nr: 1801280 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 15-10 318A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to reimbursement of medical expenses incurred at Euclid Hospital between June 28, 2013 and July 3, 2013. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from January 1991 to March 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In February 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. FINDING OF FACT The Veteran received private emergency treatment between June 28, 2013 and July 3, 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 between June 28, 2013 and July 3, 2013 have been met. 38 U.S.C. §§ 1725 , 1728 (2012); 38 C.F.R. §§ 17.120, 17.1000-17.1008 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Analysis of Claim A veteran may obtain reimbursement for medical expenses rendered at a non-VA facility under either 38 U.S.C. § 1725 or 38 U.S.C. § 1728. The criteria set forth in 38 U.S.C. § 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. § 1728. See 38 U.S.C. § 1725 (2012); 38 C.F.R. § 17.1002 (2017). The Veteran is not currently service-connected for any disabilities. Therefore there is no evidence or allegation that the medical treatment received between June 28, 2013 and July 3, 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. § 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. § 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). 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 (2017). 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. At the Board hearing, the Veteran testified that he visited the VA emergency room three times in a seven-day period because his right knee and foot were swollen, he was having trouble breathing, and was choking when he was trying to sleep. He testified that that the VA hospital performed bloodwork and an EKG and did not find any problems. He testified that he continued to get worse and went to Euclid Hospital for a second opinion because he felt that he was in real trouble. The Veteran testified that the physicians at Euclid Hospital diagnosed him with congestive heart failure. The provisions of 38 U.S.C. § 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 would have been hazardous to life or health. The Board finds that VA treatment was not feasibly available for his condition, as VA failed to identify his condition on three separate visits to the hospital. However, even after he sought VA treatment, the Veteran's symptoms continued to get worse, and he reasonably believed his condition to be life-threatening. The Board finds that, under these circumstances, it was reasonable for the Veteran to seek treatment at a private hospital. Resolving any doubt in the Veteran's favor, the criteria for payment or reimbursement of the medical expenses incurred at Euclid Hospital between June 28, 2013 and July 3, 2013 is granted. 38 U.S.C. § 1725 (f)(1). ORDER Payment or reimbursement of unauthorized, non-VA medical expenses incurred between June 28, 2013 and July 3, 2013 is granted. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs