Citation Nr: 18140439
Decision Date: 10/04/18	Archive Date: 10/03/18

DOCKET NO. 15-38 828A
DATE:	October 4, 2018
ORDER
Payment or reimbursement for medical expenses incurred due to non-VA medical care at VMC (Virginia Commonwealth University Medical Center) from May 21, 2012, through May 22, 2012 is granted.
FINDING OF FACT
The evidence is at least in relative equipoise as to whether the non-VA medical care at VMC from May 21, 2012 through May 22, 2012 was for a condition of such nature that a prudent layperson would have reasonably expected that delay in obtaining the treatment would have been hazardous to life or health; and an attempt to use the nearest VA medical facility at that time would not have been considered reasonable by a prudent layperson. 
CONCLUSION OF LAW
The criteria for entitlement to payment or reimbursement for medical expenses incurred due to non-VA medical care at VMC from May 21, 2012 through May 22, 2012 have been met.  38 U.S.C. § 1725 (2012); 38 C.F.R. § 17.1002 (2017). 

REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from November 1980 to November 1984. 
This appeal to the Board of Veterans’ Appeals (Board) is from a September 2012 decision by the Department of Veterans Affairs (VA) Veterans Integrated Service Network (VISN) Non-VA Care Program in Salem, Virginia. 
Entitlement to payment or reimbursement for medical expenses incurred due to non-VA medical care at VMC from May 21, 2012 through May 22, 2012
Pertinent Law and Regulations
When VA facilities or other government facilities are not capable of furnishing economical hospital care or medical services because of geographic inaccessibility or because they are not capable of furnishing care or services required, VA may contract with non-VA facilities to provide the appropriate care.  38 U.S.C. § 1703 (2012); 38 C.F.R. § 17.52 (2017).
Further, in general, if VA is to provide payment or reimbursement of medical expenses incurred due to a Veteran’s care at a non-VA hospital, the care must be authorized in advance.  See 38 U.S.C. § 1703; 38 C.F.R. § 17.54.  In the case of an emergency that existed at the time of admission, an authorization may be deemed a prior authorization if an application is made to VA within 72 hours after the hour of admission.  38 C.F.R. § 17.54.
Whether treatment was authorized is a factual, not a medical, determination. Similes v. Brown, 5 Vet. App. 555 (1994).  
When, however, a Veteran receives treatment at a non-VA facility without prior authorization, two statutes allow for payment or reimbursement for the medical expenses incurred for that treatment; specifically, 38 U.S.C. §§ 1725 and 1728 (2012).  Application of either statute is generally dependent on whether the Veteran has an adjudicated service-connected disability.  
In the present case, the Veteran has not established service connection for any disability.  Therefore, 38 U.S.C. § 1725 applies, as set forth below. 
Under 38 U.S.C. § 1725, payment or reimbursement for emergency services for non-service-connected conditions in non-VA facilities may also be authorized.  38 C.F.R. §§ 17.1000-03.  To be eligible for reimbursement under this authority, all the following conditions must be satisfied: 
(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 that 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 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 or in part, 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.
Id.; 38 C.F.R. § 17.1002; Staab v. McDonald, 28 Vet. App. 50 (2016) (invalidating the current version of 38 C.F.R. § 17.1002(f)).
Analysis 
As an initial matter, the record does not reflect that the non-VA medical care at VMC from May 21, 2012, through May 22, 2012, was authorized in advance.  See 38 U.S.C. § 1703 (2012); 38 C.F.R. § 17.52 (2017).  Therefore, 38 U.S.C. § 1725 applies. 
Further, the Veteran has already met many of the substantive and administrative criteria for payment or reimbursement of non-service-connected medical care under 38 U.S.C. § 1725.  In this regard, the VISN has already determined that the claim for reimbursement was timely filed by the Veteran, she is, at least in part, financially liable to the private providers for the treatment, she 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, she is not eligible for reimbursement under 38 U.S.C. 1728 for the emergency treatment provided, and the services in question were provided in a hospital emergency department.  See 38 C.F.R. §§ 17.1002(a)-(h). 
Therefore, the remaining issues are whether the medical events at VMC from May 21, 2012, through May 22, 2012, constituted an emergency; and whether a VA facility was feasibly available.  
The available records reflect that on May 5, 2012, the Veteran sustained a left wrist injury, for which she underwent an emergency surgery at VMC on May 6, 2012.  See November 2012 Communication from VMC; November 2012 VA orthopedic surgeon’s note from Dr. K.R.S.  The record indicates that the May 5, 2012, left wrist surgery was pre-authorized under 38 U.S.C. § 1703, and the Veteran does not contend otherwise.  See December 2016 Appellant’s Brief (reporting that “it is undisputed that VA authorized [the Veteran’s] first [left wrist] surgery at [VMC] on May 5, 2012.”). 
On May 21, 2012, the Veteran underwent a second left wrist surgery at VMC upon discovering that she experienced “a loss of fixation of the distal fourth ulnar fragment.”  See May 21, 2012, VMC operative report.  She was discharged on May 22, 2012. 
In a November 15, 2012 VA orthopedic consultation note, Dr. K.R.S. opined that she “believed the second [left wrist] surgery should just be considered a continuation of the first emergency procedure [on May 6, 2012].”  Dr. K.R.S. explained that “the second procedure (on May 21, 2012) was done so quickly after the first,” which indicated to her that “the first surgery (on May 6, 2012) had not done well” resulting in “one of the plates [in the left wrist] . . . no longer in satisfactory position.”  Dr. K.R.S. then acknowledged that “had [they] in [VA] Orthopedics been consulted before the second surgery [they] clearly would have recommended that it be done at [VMC] since they did the first operation and were familiar with [the Veteran’s] case.”   
When considering this evidence, the Board resolves all reasonable doubt in the Veteran’s favor and finds that reimbursement or payment of these medical expenses incurred from May 21, 2012, through May 22, 2012, is warranted.  
In this regard, in the November 15, 2012 VA orthopedic consultation note, Dr. K.R.S., a VA orthopedic surgeon, opined that the unauthorized second left wrist surgery on May 21, 2012, was “considered a continuation of the first emergency procedure [on May 6, 2012]” given her review of the available clinical evidence.  As indicated above, on May 21, 2012, the Veteran underwent the second left wrist surgery at VMC upon discovering that she experienced “a loss of fixation of the distal fourth ulnar fragment.”  Under these circumstances, the Board resolves all reasonable doubt in the Veteran’s favor and finds that her left wrist condition at the time of the May 21, 2012, surgery reflected an acute medical condition and that it was reasonable for the Veteran expect that delay in seeking immediate medical care would have been hazardous to her health.
The Board also finds that, on May 21, 2012, a VA medical facility, equipped to perform the second left wrist surgery, was not feasibly available and that attempts to use this alternative service beforehand would not have been considered reasonable by a prudent layperson.  In this regard, Dr. K.R.S. opined that it was reasonable to seek medical care from VMC given that “they did the first operation and were familiar with [the Veteran’s] case.”  See November 15, 2012, VA orthopedic consultation note.  In fact, the VA orthopedic surgeon acknowledged that “had . . .  [VA] Orthopedics been consulted before the second surgery, [it] clearly would have recommended that [the second surgery] be done at [VMC]” under the circumstances.  See November 15, 2012 VA orthopedic consultation note.  Therefore, the Board resolves all reasonable doubt in the Veteran’s favor and finds that a VA medical facility equipped to provide the care needed was not feasibly available.  
Accordingly, the Board concludes that payment or reimbursement of the Veteran’s non-VA medical treatments from May 21, 2012, through May 22, 2012, at VMC is warranted.  Her appeal is granted.  
 
MARJORIE A. AUER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. Kim, Associate Counsel