Citation Nr: 18143033 Decision Date: 10/18/18 Archive Date: 10/17/18 DOCKET NO. 16-11 261A DATE: October 18, 2018 ORDER Payment or reimbursement of unauthorized medical expenses incurred at St. Vincent Charity Hospital (SVCH) and associated private medical services from December 15, 2014 through December 18, 2014, is denied. FINDING OF FACT 1. The Veteran was not unconscious at the time of transport to or at the time of admission to SVCH on December 15, 2014, and the Veteran’s statements that she was are not credible. 2. The Veteran’s statements that any request she would have made to be transported and/or transferred to VA facilities would have been refused is not supported by any evidence in the record, are wholly speculative. 3. VA facilities were feasibly available to the Veteran throughout her stay at SVCH, and she additionally failed to inform the private facility that she was a Veteran such that the private facility could attempt to transfer her to a VA medical facility until December 18, 2014, the date on which she began treatment at VA after voluntarily discharging from SVCH. CONCLUSION OF LAW The criteria for payment or reimbursement for unauthorized medical expenses incurred at SVCH from December 15, 2014 through December 18, 2014, are not 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 FINDING AND CONCLUSION The Veteran had active duty service from April 1971 to April 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 letter of determination by a Department of Veterans Affairs (VA) Medical Center. The evidence of record demonstrates that Emergency Medical Services (EMS) were called to the Veteran’s residence on December 15, 2014, at which time she was seen for complaints of nausea and vomiting. Upon arrival, EMS assessed the Veteran as alert and oriented to person, time, places and situation. The Veteran was noted as being non-cooperative with EMS, including refusal to obtain any vitals. EMS transported the Veteran via ambulance to SVCH, and there was no change in her status during transportation, although the Veteran still refused to talk with EMS; EMS transferred her without incident to SVCH, although EMS did note that the Veteran was not physically or mentally able to sign the transfer. It was further noted, however, that EMS personnel signed the transfer on the Veteran’s behalf because she refused to sign. The Veteran was admitted to SVCH on December 15, 2014; she eventually was voluntarily discharged against medical advice on December 18, 2014, at which time she reported to Wade Park VA Medical Center for continued treatment until December 20, 2014. At the time of admission, the Veteran was noted to be an insulin-dependent diabetic with a two-day history of nausea, vomiting, and generalized malaise; she was not always compliant with her diabetic regimen and she was considered a poor historian. She took her insulin the night before, however. She reported vomiting all day and feeling generally poor; she was also profoundly thirsty. At discharge, she was diagnosed with diabetic ketoacidosis, dehydration, and influenza A. The Board reflects that at no point in any of the EMS or SVCH records is the Veteran noted to be unconscious, and the Veteran first notified SVCH personnel that she “normally follows up with VA” on December 18, 2014, at which time SVCH staff noted that they would “try to transfer her to VA [as soon as possible].” The Board takes notice that from the address that EMS picked the Veteran up from, SVCH was 1 mile away and the Wade Park VA Medical Center was 3.5 miles in the opposite direction. On appeal, the Veteran contends that she was unconscious when she was transported by ambulance to SVCH and that she was unable to tell them she was a Veteran and needed to be transported to a VA facility. She specifically stated that she “was taken by ambulance to the closest hospital, [she] was unconscious. [She did not] remember any of the ambulance rides at all.” Furthermore, in her substantive appeal, VA Form 9, she stated that it was “a well known fact that EMS in the Cleveland area will NEVER take an individual to the VA [Medical Center] under any circumstances. So even if [she] had been able to request this, it would not have taken place.” In this case, there is no evidence of prior authorization and the Veteran does not contend that she attempted to obtain prior authorization for this episode of treatment. Accordingly, 38 U.S.C. § 1703 is not applicable. Next, the Board notes that the Veteran’s only disability for which service connection has been established is posttraumatic stress disorder (PTSD) and major depressive disorder, which was assigned a 70 percent disability rating, for the January 15-18, 2014 period at issue in this case. Thus, the Veteran was not permanently and totally disabled due to her service-connected disabilities during the period at issue in this case, and her treatment was not for any service-connected disability or for any disorder that is associated with or aggravating her service-connected disabilities; the Veteran was seen for symptoms of influenza and complications with her diabetes mellitus and associated dehydration. Likewise, the Veteran’s treatment was not for any injury or illness contracted in the course of a rehabilitative program. Consequently, the Veteran is not eligible for payment or reimbursement under 38 U.S.C. § 1728 in this case. See 38 C.F.R. § 17.120. Nonetheless, the Veterans Millennium Health Care and Benefits Act also provides general authority for reimbursement for the reasonable value of emergency treatment furnished in a non-VA facility to those Veterans who are active VA health-care participants (i.e., enrolled in the annual patient enrollment system and recipients of a VA hospital, nursing home, or domiciliary care under such system within the last 24-month period) and who are personally liable for such non-VA treatment and not eligible for reimbursement under the provisions of 38 U.S.C. § 1728. 38 U.S.C. § 1725; 38 C.F.R. §§ 17.1000-1008. 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 conditions of 38 C.F.R. § 17.1002 are met; the pertinent part related to this case in particular is as follows: . . . (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); . . . . The existence of a VA facility does not in and of itself mean that the VA facility was feasibly available. Cotton v. Brown, 7 Vet. App 325, 327 (1995). The fact that a VA medical center was located in the same city as the private facility does not provide an adequate basis for the Board’s findings that a VA facility was “available”; rather, the determination of whether a VA facility was “feasibly available” must be made after consideration of such factors as the urgent nature of the veteran’s medical condition and the length of any delay that would have been required to obtain treatment from a VA facility. Id. at 327-28. Respecting the relative distance of the travel involved, the Board may take judicial notice of facts, as compared to evidence, which are not subject to interpretation. See Yeoman v. West, 140 F.3d 1443 (Fed. Cir. 1998); Dedicatoria v. Brown, 8 Vet. App. 441 (1995). Other factors to consider include whether a prudent layperson would consider an attempt to use a VA facility beforehand or obtain prior VA authorization for the services required would have been reasonable, sound, wise, or practicable, or whether treatment had been or would have been refused. 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. 38 C.F.R. §§ 17.120(c), 17.1002(c). Regardless, no reimbursement or payment of services will be made when such treatment was procured through private sources in preference to available Government facilities. 38 C.F.R. § 17.130. Finally, VA will not approve claims for payment or reimbursement of the costs of emergency treatment not previously authorized for any period beyond the date on which the medical emergency ended. For this purpose, VA considers that an emergency ends when the designated VA clinician at the VA facility has determined that, based on sound medical judgment, a veteran who received emergency treatment could have been transferred from the non-VA facility to a VA medical center (or other appropriate Federal facility) for continuation of treatment, or could have reported to a VA medical center (or other appropriate Federal facility) for continuation of treatment. 38 C.F.R. § 17.1005(b). Based on the foregoing evidence, the Board must deny the Veteran’s claim at this time. The Board does not doubt the severity of the Veteran’s medical condition in this case, as she was transported from her residence to a hospital by ambulance. However, the record demonstrates that VA facilities were feasibly available to the Veteran throughout the period of December 15-18, 2014, in this case. Initially, the Board notes that the Veteran’s contentions that she was unconscious when EMS transported her to SVCH is not borne out by the medical evidence of record but rather show that this was not the case. The medical treatment records from both EMS—including prior to and during transport, and at transfer—and on admission to SVCH do not demonstrate that the Veteran was unconscious; she was noted to be alert and oriented to person, time, place, and situation in the EMS records. Rather, the Veteran was noted as being uncooperative with both the EMS personnel and at admission with SVCH; the Board also notes that during the 3-day period at SVCH the Veteran also appeared to be generally uncooperative with the SVCH personnel as well. Consequently, although the Board acknowledges the Veteran’s statements on appeal that she was unconscious and therefore unable to tell EMS to take her to a VA facility instead of the private facility in this case, the Board finds that the Veteran’s statements are not credible in light of the clear medical evidence to the contrary in this case. Furthermore, the Board reflects that although SVCH was the “closest emergency facility” to the address EMS responded to, an extra 2.5 miles in the opposite direction in an ambulance was feasible in this case. In short, given that the Veteran was not unconscious at the time of her transport and transfer by EMS, the Board finds that the Veteran could have and should have told the EMS personnel that she was a Veteran and needed to be taken to the VA Medical Center for treatment instead of SVCH. The fact that the Veteran was uncooperative and failed to tell this fact to EMS personnel in this case is tantamount to the Veteran preferring treatment at a private facility instead of an available VA facility. As a final matter, the Board also acknowledges the Veteran’s statements that it was “a well known fact” that EMS services in the Cleveland area would not have transported her to the VA Medical Center in any case, and therefore any request would not have been granted. The Board, however, finds this argument to be speculative. Regardless of whether the Veteran’s request would have been honored or not by EMS personnel, the Veteran had a duty to make the request; it does not appear—and her own statements confirm this fact—that she attempted to make the request that EMS take her to the VA Medical Center instead of SVCH. In any event, there is no evidence of record documenting this “well known fact” that Cleveland-area EMS service routinely refuse transport to VA facilities or documenting that the Veteran requested to be transported to the VA Medical Center and the EMS personnel in this particular case refused that request. Rather, it appears to the Board that because the Veteran was uncooperative and failed to inform EMS that she needed to be taken to a VA facility, they took her to the closest medical facility. The Veteran’s uncooperativeness with EMS personnel in this case does not make VA facilities unavailable in this case. Moreover, the Veteran had the duty to inform SVCH personnel at admission that she was a Veteran so that they could have attempted to transfer her to VA facilities. Private treatment records from SVCH demonstrate that the Veteran received medical treatment from SVCH for 3 days before finally indicating to staff that she “normally follows up at the VA.” At that time, SVCH staff indicated that they “will try to transfer her to VA [as soon as possible].” Before transfer could be set up with VA through SVCH, however, the Veteran voluntarily left SVCH against medical advice and immediately sought continued treatment at the VA Medical Center. Again, the Veteran’s silence and her own actions in this case are tantamount to a refusal to transfer and a preference in receiving private instead of government treatment in this case. Under the circumstances of this case, the Board cannot find that VA facilities were not feasibly available to the Veteran. Consequently, the Board must also find the Veteran’s statements that her requests to be transported and/or transferred to VA would have been refused in this case are also unsupported by the evidence of record. As VA facilities were feasibly available to the Veteran in this case, the Board need not discuss any other aspects of the claim in this case. Accordingly, the Board must deny this the Veteran’s claim for payment or reimbursement of the medical expenses incurred at SVCH and associated private medical services from December 15, 2014 through December 18, 2014, must be denied at this time based on the evidence of record. See 38 U.S.C. § 1725; 38 C.F.R. §§ 17.52, 17.53, 17.130, 17.1002, 17.1005. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Peters, Counsel