Citation Nr: 18144494
Decision Date: 10/25/18	Archive Date: 10/24/18

DOCKET NO. 16-09 723
DATE:	October 25, 2018
ORDER
Payment or reimbursement for medical expenses, incurred due to non-VA emergency transportation provided by City of Lufkin Fire Department (CLFD), on March 20, 2015, is granted.
FINDING OF FACT
On March 20, 2015, the Veteran was transported to the nearest non-VA medical facility from his location by private emergency transportation, provided by CLFD, due to his emergent medical condition. 
CONCLUSION OF LAW
The criteria for entitlement to payment or reimbursement for private emergency transportation services provided by CLFD, on March 20, 2015, are met. 38 U.S.C. §§ 1703, 1725, (2012); 38 C.F.R. §§ 17.1000-17.1008 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from January 1965 to March 1966.  
This appeal to the Board of Veterans’ Appeals (Board) is from a September 2015 decision by the Department of Veterans Affairs (VA) Veterans Integrated Service Network (VISN) Non-VA Care Program in Flowood, Mississippi.  
Entitlement to payment or reimbursement for medical expenses incurred due to private emergency transportation provided by CLFD on March 20, 2015 
Pertinent Law and Regulations
Under 38 C.F.R. § 17.1003, payment or reimbursement under 38 U.S.C. § 1725 for private ambulance services may be made for transporting a veteran to a facility only if certain conditions are met.  As relevant, payment or reimbursement must be authorized under 38 U.S.C. § 1725 for emergency treatment provided at a non-VA facility.  38 C.F.R. § 17.1003(a)-(d) (2017).  
Therefore, the key issue is whether the non-VA medical care following the private emergency transportation was or would have been authorized under 38 U.S.C. § 1725.  
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 
The Board resolves all reasonable doubt in the Veteran’s favor and finds that payment or reimbursement for CLFD’s March 20, 2015, private emergency services is warranted given that the non-VA medical care following emergency transportation would have been authorized under 38 C.F.R. § 1725. 
In this regard, 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, he is, at least in part, financially liable to the private providers for the treatment, he 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, he 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). 
The remaining issues are whether the medical events at the non-VA medical facility beginning on March 20, 2015, constituted an emergency; and whether a VA facility was feasibly available.  
In this regard, a March 20, 2015, emergency treatment note from the non-VA medical facility indicates that the Veteran “was at [a] VA clinic” when he “became pale and diaphoretic and began vomiting,” due to which CLFD’s private emergency transportation was contacted to transfer him to the nearest non-VA medical facility equipped to handle emergent medical conditions.  Likewise, a March 20, 2015, VA treatment note from the Veteran’s VA primary care physician notes that the Veteran was “present for routine testosterone shot” when he became “diaphoretic with altered mentation and inability to walk due to weakness.”  The Veteran was subsequently transported to the nearest non-VA medical facility for emergency medical care and was discharged on March 22, 2015.  Under these circumstances, the Board finds that the above-described Veteran’s medical condition, on March 20, 2015, represented 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 his health at that time.
The Board also finds that, on March 20, 2015, a VA medical facility, equipped to provide emergency medical care, was not feasibly available.  As noted, the Veteran was at a VA medical facility when he experienced the emergent medical event.  The March 20, 2015 VA treatment note from his treating physician makes clear that the Veteran was transported to the nearest non-VA medical facility given the VA medical facility’s inability to provide the necessary emergent medical care at that time.  
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Therefore, given the foregoing, entitlement to payment or reimbursement for medical expenses incurred due to the non-VA emergency transportation provided by CLFD, on March 20, 2015, is warranted.  38 U.S.C. § 1725; 38 C.F.R. § 17.1003(a)-(d).  His appeal is granted. 

 
MARJORIE A. AUER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. Kim, Associate Counsel