Citation Nr: 18140242
Decision Date: 10/02/18	Archive Date: 10/02/18

DOCKET NO. 16-00 001A
DATE:	October 2, 2018
ORDER
Entitlement to payment or reimbursement for the cost of unauthorized medical treatment provided from January 1 to January 2, 2015, at J.W. Ruby Memorial Hospital – West Virginia University Medicine is denied.
FINDINGS OF FACT
1. The Veteran received medical treatment at J.W. Ruby Memorial Hospital from January 1 to January 2, 2015, for a complaint of a one-week history of tinnitus.  Laboratory results and a brain CT were unremarkable and the Veteran was discharged approximately six hours after he arrived.
2. A prudent layperson would not believe the symptoms the Veteran experienced prior to treatment at J.W. Ruby Memorial Hospital were emergent in nature.
3. A VA facility was feasibly available considering the non-emergent nature of the Veteran’s symptoms.
CONCLUSION OF LAW
The criteria for establishing entitlement payment or reimbursement for unauthorized medical treatment received from January 1 to January 2, 2015, at J.W. Ruby Memorial Hospital, have not been met.  38 U.S.C. §§ 1703, 1725, 1728, 5107; 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120, 17.121, 17.1002.
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veteran served on active duty from August 2005 to March 2010.  His decorations include a Combat Action Ribbon and an Afghanistan Campaign Medal.
1. Reimbursement for unauthorized medical treatment.
The Veteran was seen in the emergency department of J.W. Ruby Memorial Hospital – West Virginia University Medicine on January 1, 2015, at approximately 10:00 p.m., after reporting having a ringing in his ears for least one week.  He indicated that the ringing was causing anxiety and he was not sleeping well.  He denied having dizziness, vertigo, or gait disturbance.  Laboratory test results and a brain CT were unremarkable.  The Veteran was diagnosed with tinnitus and discharged on January 2, 2015, at approximately 4:00 a.m., with instructions to follow-up with an ear, nose, and throat (ENT) specialist.
The Veteran was denied reimbursement for treatment at J.W. Ruby Memorial Hospital on the bases that it was non-emergent care and a VA facility was feasibly available.  See 38 U.S.C. § 1725.
The Veteran contends that due to his ears ringing, he had been unable to get much sleep and had not been eating very much.  On January 1, 2015, he became dizzy and felt sick.  It was late at night, so he drove himself to a nearby ER, which was only three minutes away from his apartment.  The Veteran asserts that the nearest VA ER was 40 miles away and it would not have been safe for him to drive that far.  See the May 2015 notice of disagreement, October 2015 statement; March 2016 VA Form 9.
Payment or reimbursement of non-VA emergency medical services for non-service connected disorders for Veterans without full insurance coverage is available if certain conditions are met.  38 U.S.C. § 1725; 38 C.F.R. §§ 17.1000-17.1008.  To be eligible for payment by VA for services rendered for a nonservice-connected condition in a non-VA facility under 38 U.S.C. § 1725 and 38 C.F.R. §§ 17.1000-17.1008, the treatment must satisfy all of the following conditions:
(a) The emergency services were provided in a hospital emergency department or a similar facility providing emergency care;
(b) A prudent layperson would have reasonably expected that delay in seeking immediate medical attention for the initial evaluation and treatment would have been hazardous to life or health;
(c) A VA or other Federal facility was not feasibly available and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson;
(d) The Veteran was enrolled in the VA health care system at the time the emergency treatment was furnished and had received medical services under 38 U.S.C. Chapter 17 within two years before the non-VA emergency treatment;
(e) The Veteran is financially liable to the non-VA provider of the emergency treatment;
(f) The Veteran does not have coverage under a health-plan contract that would fully extinguish the medical liability 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) The Veteran has unsuccessfully exhausted claims reasonably available against a third party in the case of an accident or work-related injury; and
(h) The Veteran is not eligible for reimbursement under 38 U.S.C. § 1728, which applies primarily to emergency treatment for a service-connected disability.  See 38 C.F.R. § 17.1002.  (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.)
In this case, the Veteran is not eligible under 38 U.S.C. § 1728 for reimbursement, as he is not service-connected for tinnitus.  As such, 38 U.S.C. § 1725 applies.
The standard for finding that services were rendered in a “medical emergency” under 38 U.S.C. § 1725 requires that the evaluation and treatment be 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 a situation involved 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.  38 C.F.R. § 17.1002(b).
The Board concludes that the evidence does not demonstrate that treatment at J.W. Ruby Memorial Hospital was rendered in a medical emergency, and that as such, a VA facility was feasibly available.  
As noted above, the Veteran sought treatment at the emergency department of J.W. Ruby Memorial Hospital for ringing in his ears, which he reported that he had been experiencing for a week.  Results of laboratory tests and a brain CT were unremarkable, and the Veteran was diagnosed with tinnitus.    
The Board acknowledges the Veteran’s contention that his tinnitus had worsened when he sought treatment, but nevertheless finds it significant that the Veteran reported to the treating doctors at J.W. Ruby Memorial Hospital that he had been experiencing tinnitus for at least a week prior to seeking treatment.  Waiting a week prior to seeking treatment does not support the assertion that the condition was of such a severity to constitute a medical emergency.  As such, the Board concludes that there is no indication in the record that the tinnitus was of such severity that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention for the initial evaluation and treatment would have been hazardous to life or health, or that a VA or other Federal facility was not feasibly available and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson.  Simply stated, the evidence in this case does not support the lay person test.  
While the Board sympathizes with the Veteran’s situation and the particular circumstances therein, after review of the record, the Board finds that the preponderance of the evidence is against payment or reimbursement of unauthorized medical expenses incurred for treatment at J.W. Ruby Memorial Hospital from January 1 to January 2, 2015, and the claim is denied.  38 U.S.C. §§ 1725, 5107.

 
H. SEESEL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	N. Nelson, Counsel