Citation Nr: 18142628
Decision Date: 10/16/18	Archive Date: 10/16/18

DOCKET NO. 14-28 856
DATE:	October 16, 2018
ORDER
Entitlement to payment or reimbursement for the cost of unauthorized medical treatment provided on July 6, 2012, at Florida Hospital Fish Memorial is denied.
FINDINGS OF FACT
1. The Veteran received medical treatment at Florida Hospital Fish Memorial on July 6, 2012, for a complaint of a three-day history of a migraine headache.  Results of a neurological examination were normal, the Veteran was given Imitrex and Zofran, and discharged approximately 45 minutes after she arrived.
2. A prudent layperson would not believe the symptoms the Veteran experienced prior to treatment at Florida Hospital Fish Memorial 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 on July 6, 2012, at Florida Hospital Fish Memorial 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 in the Army from September 1988 to April 1990.
In a June 2014 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge; however, in September 2018, she withdrew her hearing request.  See 38 C.F.R. § 20.704(d).
1. Reimbursement for unauthorized medical treatment.
The Veteran was seen in the emergency department of Florida Hospital Fish Memorial on July 6, 2012, at approximately 5:04 p.m., after reporting a three-day history of a migraine, accompanied by a two-day history of nausea.  She stated that she normally took Imitrex but had run out of her medication.  Results of a neurological examination were normal.  The Veteran was diagnosed with a migraine, given Imitrex and Zofran, and discharged approximately 45 minutes later, with instructions to follow-up with her primary care provider at VA in 4-5 days.
The Veteran was denied reimbursement for treatment at Florida Hospital Fish Memorial 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 it was an emergent situation and that a VA facility was not available.  See the March 2014 notice of disagreement, August 2014 statement by the representative.
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 she is not service-connected for migraines or headaches.  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 Florida Hospital Fish Memorial 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 Florida Hospital Fish Memorial on July 6, 2012, for a migraine, which she reported that she had been experiencing for three days.  She indicated that she felt the headache was the same as her normal headache and indicated she normally took Imitrex but ran out of medication.  Results of a neurological examination were normal, and the Veteran was diagnosed with a migraine.  
VA treatment records indicate that the Veteran had called VA earlier that day (July 6, 2012) to request a refill of her Imitrex prescription.  She called again to check on the status of the prescription renewal at approximately 1:00 p.m., which had not been yet been fulfilled.  She drove to the Florida Hospital Fish Memorial ER approximately four hours later.  
The Board acknowledges the Veteran’s contention that her migraine was emergent when she sought treatment, but nevertheless finds it significant that the Veteran reported to the treating doctors at the Florida Hospital Fish Memorial ER that she had been experiencing the migraine for three days prior to seeking treatment.  Waiting three days prior to seeking treatment does not support the assertion that the condition was of such a severity to constitute a medical emergency. Furthermore, at the ER she did not describe any symptoms of the headache which were unusual or concerning but rather reported it felt the same as her other headaches which would be successfully treated with medication.  As such, the Board concludes that there is no indication in the record that the migraine 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 Florida Hospital Fish Memorial on July 6, 2012, 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