Citation Nr: 18144536
Decision Date: 10/25/18	Archive Date: 10/24/18

DOCKET NO. 12-17 628A
DATE:	October 25, 2018
ORDER
Entitlement to payment or reimbursement for the cost of unauthorized medical treatment provided on April 5, 2012, at Ocala Regional Medical Center is granted.
FINDINGS OF FACT
1. The Veteran received medical treatment at Ocala Regional Medical Center on April 5, 2012, for a complaint of a three-day history of abdominal pain.  Results of an abdomen and pelvis CT were normal and the Veteran was discharged approximately three hours after he was first seen.
2. A prudent layperson would believe the symptoms the Veteran experienced prior to treatment at Ocala Regional Medical Center were emergent in nature.
CONCLUSION OF LAW
The criteria for establishing entitlement payment or reimbursement for unauthorized medical treatment received on April 5, 2012, at Ocala Regional Medical Center have been approximated.  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 August 1983 to June 1987.
In a July 2012 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge.  A hearing was scheduled for June 2018; however, two days prior to the hearing date, the Veteran withdrew his 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 Ocala Regional Medical Center on April 5, 2012, at approximately 4:22 p.m., after reporting a three-day history of abdominal pain.  A CT scan of the abdomen and pelvis did not show any acute abnormalities.  He was diagnosed with abdominal pain and discharged at approximately 7:31 p.m., at which time the Veteran was noted to be stable and improved.
The Veteran was denied reimbursement for treatment at Ocala Regional Medical Center 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 he was directed to report to the nearest ER, and that the VA medical facility in Gainesville, Florida, was over 50 miles away.  See the July 2012 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 any stomach or abdomen condition.  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 as at an approximate balance that treatment at Ocala Regional Medical Center was rendered in a medical emergency.  
As noted above, the Veteran sought treatment at the emergency department of Ocala Regional Medical Center on April 5, 2012, for abdominal pain, which he reported that he had been experiencing for three days.  Results of an abdomen and pelvis CT were normal and the Veteran was discharged approximately three hours after he was first seen.  
The Board acknowledges the Veteran’s contention that his abdominal pain was emergent when she sought treatment, but also notes that the Veteran reported to the treating doctors at the Ocala Regional Medical Center ER that he had been experiencing the pain 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. 
However, the Board finds it significant that the Veteran had called VA earlier that day (April 5, 2012) reporting severe lower left quadrant pain for three days and was advised to go to the nearest emergency room.  The Nurse’s note on that date reflects that even with the 3 day history of pain the concern was appendicitis, pancreatitis, kidney stone, gallbladder disease or intestinal obstruction and the recommendation was coded as “urgent” and follow up was “emergency room.”  Receipt of such advice is a factor to be considered in in determining whether a prudent layperson would have chosen to go the Ocala Regional Medical Center emergency room or to be seen at a VA facility.  The Board finds it reasonable that a prudent layperson being told to go to the “closest ER now” would believe his condition was emergent and would follow the advice of a medical practitioner.
In this regard, the Board notes the VA Ocala Community Based Outpatient Clinic (CBOC) was located approximately 10.6 miles from the Veteran’s home and was open when the Veteran called VA at approximately 1:45 p.m. However, the Veteran was specifically instructed to go to the nearest ER.  The Ocala Regional Medical Center ER was approximately 9.8 miles from the Veteran’s home in Belleview, Florida.  The VA emergency department in Gainesville was approximately 55 miles from the Veteran’s home. 
Thus, evaluating the evidence the Board finds it is reasonable that a layperson would believe the advice of a nurse to go to the nearest ER and given the locations of the ER it is understandable why the Veteran went to Ocala Regional Medical Center.  Resolving all doubt in the Veteran’s favor, the Board therefore finds that payment or reimbursement of unauthorized medical expenses incurred for treatment at Ocala Regional Medical Center on April 5, 2012, and the claim is granted.  38 U.S.C. §§ 1725, 5107.
 
H. SEESEL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	N. Nelson, Counsel