Citation Nr: 1801286	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  16-25 844	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in North Florida/South Georgia Veterans Health System


THE ISSUE

Entitlement to payment or reimbursement for unauthorized medical expenses incurred as a result of treatment at a private medical facility on July 12, 2015.


ATTORNEY FOR THE BOARD

E. Ko, Associate Counsel


INTRODUCTION

The Veteran had active service from November 1976 to October 1980. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 decision of the North Florida/South Georgia Veterans Health System.  



FINDINGS OF FACT

1.  On July 12, 2015, the Veteran incurred medical expenses at a private medical facility for treatment of a left leg skin condition.

2.  The July 12, 2015 treatment was not previously authorized by VA and the preponderance of the evidence is against a finding that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health.


CONCLUSION OF LAW

The criteria for payment or reimbursement of medical expenses incurred during treatment on July 12, 2015 at a private medical facility have not been met.  38 U.S.C. §§ 1725, 5107 (2012); 38 C.F.R. §§ 17.1000 - 17.1008 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

This claim is governed by the provisions of Chapter 71 of Title 38 of the United States Code.  Hence, the provisions of the Veterans Claims Assistance Act of 2000 are not applicable.  See Barger v. Principi, 16 Vet. App. 132 (2002).  Nevertheless, the Board has reviewed the case for purposes of ascertaining whether the Veteran has had a fair opportunity to present arguments and evidence in support of his claim for reimbursement of medical expenses, and the Board concludes that the requirements for the fair development of this appeal have been met. 

Any duty to assist has been fulfilled as all relevant medical records have been obtained and the Veteran has been provided the opportunity to participate in his appeal.  The Veteran has not identified any outstanding evidence which could be used to support his claim, and there is no evidence of any error of omission or commission which could result in prejudice to the Veteran or otherwise affect the essential fairness of this decision.  Accordingly, the Board will proceed to the merits of the appeal.

Analysis

The Veteran contends that the treatment he received on July 12, 2015 at a private medical facility was an emergency treatment as defined under 38 U.S.C. § 1725 (2012) and therefore subject to payment or reimbursement by VA.  

Payment or reimbursement under 38 U.S.C. § 1725 for emergency treatment (including medical services, professional services, ambulance services, ancillary care and medication (including a short course of medication related to and necessary for the treatment of the emergency condition that is provided directly to or prescribed for the patient for use after the emergency condition is stabilized and the patient is discharged)) will be made only if ALL of the following conditions are met (emphasis added): 

(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 that VA has an agreement with to furnish health care services for veterans 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 would be met by evidence establishing that a veteran was brought to a hospital in an ambulance and the ambulance personnel determined the nearest available appropriate level of care was at a non-VA medical center); 

(d) 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; 

(e) The veteran is financially liable to the provider of emergency treatment for that treatment; 

(f) 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 the 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); 

(g) 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, the veteran's liability to the provider; and 

(h) 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). 

See also 38 C.F.R. § 17.1002 (2017).

Review of the record shows that service connection has not been established for a left leg skin condition.  Hence, the Veteran is not entitled to payment or reimbursement by VA under 38 U.S.C. § 1728; 38 C.F.R. § 17.120.  

According to private treatment records, the Veteran arrived at the private medical facility's emergency department at 9:38 a.m. on July 12, 2015 with complaints of skin sores on his left leg.  He was discharged at 11:00 a.m. on the same day.  The records note that he had skin sores for about four days before he went to the emergency department.  His condition was noted as stable and he was not administered medications during his visit.  He had complaints of mild pain in the left leg - two out of ten on a pain scale.  His symptoms were mild, at worst.  Upon discharge, the Veteran was prescribed oral medication for ten days and instructed to wash his leg twice a day and keep the affected area covered.  He was primarily diagnosed with cellulitis and diagnoses of skin sores and abscesses were also noted.  

According to a VA treatment record dated July 13, 2015, the Veteran reported lesion on his left lower leg and was diagnosed with abscess of the left lower leg.  He was prescribed the same treatment as he was at the private medical facility.  The Veteran stated that he wanted an appointment at the VA medical facility to check his left leg and to ensure that it was improving before he was finished with his medication.  

Initially, the Board notes that the Veteran did not receive VA permission to seek treatment outside the VA for his left leg skin sores.  Under such circumstances, VA may still reimburse the Veteran for cost of that treatment provided that it was emergent in nature.  In this case, the preponderance of the evidence shows that the visit to the private medical facility was not due to an emergency situation. 

There is no evidence that the visit to the private medical facility's emergency department was for a bona fide emergency.  38 U.S.C. § 1725.  Moreover, the preponderance of the evidence shows that the Veteran's left leg skin sores were not 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.

The private treatment records do not show that his skin condition was severe when he arrived at the private medical facility.  The Veteran's skin sores began four days before he went to the private medical facility and were evaluated to be mild, at worst.  His visit to the emergency department was approximately only two hours and medications were not administered during the visit.  His prescribed treatment was temporary and did not indicate that any additional treatment or medical procedures would be required. 

The Board acknowledges that the Veteran reported that his left leg abscess was very red, swollen, and painful.  He also characterized his condition as a severe Methicillin-resistant staphylococcus aureus (MRSA) infection that required a five day hospital stay with IV antibiotics.  The record does not show that the Veteran required an overnight hospital stay for his left leg skin condition.  Even if the Veteran were referring to a hospital stay at a VA facility after his visit to the private medical facility, entitlement to reimbursement for medical services outside VA is not determined by the outcome.  It is determined by the emergent nature of the disability prior to the treatment.  

The Board finds that the probative value of Veteran's current lay statements, which are presented in support of a claim for reimbursement, are outweighed by the contemporaneously prepared treatment records which do not reflect that the Veteran's left leg was very painful.  Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than subsequently reported history); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest may be found to affect the credibility of testimony).  Further, as the Veteran is a lay person in the field of medicine, he does not have the expertise to competently diagnose his skin condition as MRSA.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994). 

In sum, the time between the onset of the leg symptoms and treatment at the private medical facility and contemporaneous private treatment records belie any suggestion that the Veteran was presented with an emergent condition.  Therefore, as one of the criteria required is not met, it follows that all of the criteria necessary to reimburse the appellant are not met.  As the Veteran does not meet all of the criteria for reimbursement of the medical expenses at the private medical facility, the benefit sought must be denied. 

In arriving at this decision, the Board must again emphasize that reimbursement requires that the Veteran meet ALL of the criteria set forth in 38 C.F.R. § 17.1002.  As he has not done so, the appeal is denied. The Board need not address all of the remaining criteria in 38 C.F.R. § 17.1002. 

The Board has considered the doctrine of reasonable doubt. However, that doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves the claim.  In this case, the preponderance of the evidence is against the Veteran's claim.  Therefore, the doctrine of reasonable doubt is not applicable.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Entitlement to payment or reimbursement for unauthorized medical expenses incurred as a result of treatment at a private medical facility on July 12, 2015 is denied.




____________________________________________
M. Tenner
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs