Citation Nr: 18144818 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 16-04 249 DATE: October 25, 2018 ORDER Entitlement to payment or reimbursement for expenses incurred at St. Vincent’s Medical Center on April 3, 2015 is denied. FINDINGS OF FACT 1. On April 3, 2015, the Veteran was treated for migraine headache at St. Vincent’s Medical Center. 2. The Veteran is service-connected for migraine headaches. 3. Prior authorization from VA was not granted for private treatment received on April 3, 2015. 4. A VA facility was feasibly available for treatment, but no attempt was made beforehand to use this facility. 5. The treatment received on April 3, 2015 was not for a medical emergency, and a prudent layperson would not believe the symptoms were such that delay in seeking care was hazardous to life or health. CONCLUSION OF LAW The criteria for entitlement to payment or reimbursement of unauthorized expenses incurred at St. Vincent’s Medical Center on April 3, 2015 have not been met. 38 U.S.C. §§ 1703, 1725, 1728, 5107(b); 38 C.F.R. §§ 3.102, 17.53, 17.54, 17.120, 17.121, 17.1000-1008. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 2009 to July 2013. The Veteran has submitted written statements describing how on April 3, 2015, her episode of migraine pain had become very severe, causing her to vomit anything she tried to consume, including water. She wrote that she was having vision disturbances and extreme, non-relenting pain, and was unable to drive and had to get a ride to the nearest emergency room. The Veteran has written that she was previously reimbursed by VA for treatment at private emergency rooms for similar medical treatment and felt that this episode of treatment should be reimbursed as well. The Veteran’s VA treatment records show that she does have a history of serious migraine headaches. In February and March 2015, she was treated for severe migraines, and reported that they were occurring four times a week and lasting for days. On April 3, 2015, she called VA with complaints of migraines with nausea and vomiting. The Veteran reported that she was unable to keep anything down and was unable to drive herself, and therefore she was going to her local emergency room because she was unable to make it to the Gainesville VA Medical Center. Private medical records from the emergency department at St. Vincent’s Medical Center show that at 2:13 PM on April 3, 2015, the Veteran presented with a headache that had its onset one week ago and was gradual. The course/duration of symptoms was constant but fluctuating in intensity. The degree at onset and at maximum was “moderate,” and the degree at time of treatment was “moderate.” She reported exacerbating factors of light, noise, exertion, and bending over. She underwent a head CT scan, which found no evidence of intracranial hemorrhage or hydrocephalus, and there was no evidence of acute intracranial abnormality. She was diagnosed with migraine headache and discharged later that afternoon. Federal statutes and VA regulations offer several avenues by which a veteran can claim payment or reimbursement for emergency medical expenses incurred at non-VA medical facilities. When VA facilities are not capable of furnishing economical hospital care or medical services because of geographic inaccessibility or are not capable of furnishing care or services required, VA may contract with non-VA facilities for care. 38 U.S.C. § 1703; 38 C.F.R. §§ 17.52, 17.53. In this case, however, there is no indication that VA authorized the Veteran’s treatment advance or made any contractual arrangements for the Veteran to receive care at a private hospital facility. While the Veteran has written that a VA nurse told her to go to the emergency room because the Jacksonville Outpatient Clinic “could not give [her] the care [she] needed,” the April 3, 2015 record of contact with a VA nurse shows only that the Veteran reported to VA that she was going to get a ride to her local emergency room. Acknowledgement from a nurse merely that the Veteran intended to visit a private emergency room does not constitute authorization by VA to receive private treatment, and there is no indication that the nurse told the Veteran that the Jacksonville Outpatient Clinic was unable to treat her at that time. See 38 C.F.R. § 17.54; Smith v. Derwinski, 2 Vet. App. 378 (1992). In the absence of prior authorization for medical services, there is no factual or legal basis for payment or reimbursement by VA under 38 U.S.C. § 1703 and 38 C.F.R. §§ 17.52, 17.53, and 17.54 for contracted medical services at a non-VA facility. There is also no indication or assertion that the Veteran had applied for or been approved for private medical care under the VA Veterans Choice program, and therefore the regulations pertaining to this program are not currently applicable. See 38 C.F.R. §§ 17.1500-1540. The evidence clearly indicates that the Veteran was treated for a disorder for which she has been granted service connection. The Veteran is currently service-connected for migraine headaches, evaluated as 50 percent disabling. She therefore could potentially be eligible for reimbursement under 38 U.S.C. § 1728, which requires that the treatment be related to a service-connected disability. See 38 U.S.C. § 1728; 38 C.F.R. § 17.47(i), 17.120. Reimbursement for unauthorized medical expenses may also be claimed pursuant to 38 U.S.C. § 1725 and 38 C.F.R. §§ 17.1000-1008, enacted as part of the Veterans Millennium Health Care and Benefits Act, Public Law 106-177. This legislation can be applied only when the veteran is not eligible for reimbursement under 38 U.S.C. § 1728. The Board, however, is unable to find that payment or reimbursement is warranted under either 38 U.S.C. § 1728 or 38 U.S.C. § 1725. Under both of these avenues for reimbursement, regulations require that a finding 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; and the condition was a medical emergency such as a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. 38 C.F.R. §§ 17.120(b), (c), 17.1002(b), (c). The standard for a medical emergency would be met if there were an emergency 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 body part. 38 C.F.R. §§ 17.120(b), 17.1002(b). The Veteran does not meet the criteria for reimbursement under 38 U.S.C. § 1728 or 38 U.S.C. § 1725, because the preponderance of the evidence indicates that a VA medical facility was reasonably available, and a prudent layperson in the Veteran’s position would not have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. The Veteran has written that she was unable to drive to the Gainesville or Lake City VA emergency centers because her vision was impaired and she was unable to drive. The April 3, 2015 treatment record from St. Vincent’s shows, however, that her migraine headache had a gradual onset that had gone on for a week. The Veteran has not indicated any credible reason why she would have been unable to attend a closer VA facility, such as the Jacksonville Outpatient Clinic or the Jacksonville Southpoint Clinic, at some point during this week. The Veteran has reported that she does receive her primary care at the Jacksonville Outpatient Clinic. The Veteran has written that she called VA and was told that the Jacksonville Outpatient Clinic was unable to give her the care she needed. Significantly, the evidence preponderates against this claim. Rather, the evidence shows that the Veteran called VA and merely informed them that she would be going to a private emergency room. There is no evidence indicating that any attempt made to receive treatment from any feasibly available VA facilities. The evidence preponderates against finding that the Veteran’s condition at the time of her treatment on April 3, 2015 was 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. The Veteran has written that she was in extreme pain, with vomiting and nausea. The objective treatment record from St. Vincent’s Medical Center shows only pain that was “moderate,” even when it was at maximum degree, with associated symptoms of nausea and vomiting. The migraine had also been occurring gradually over a long period of time, with the Veteran reporting that it began one week earlier. The Board acknowledges that the Veteran’s symptoms likely were extremely distressing and uncomfortable, but the record also shows that the appellant deals with episodes of migraine headaches on a very regular basis, and there is no indication that she believed her symptoms were such that her life or health was in serious jeopardy. The Board finds that even if her headache pain had worsened on April 3, 2015, the fact that she had experienced ongoing headache pain for the prior week indicates that a prudent layperson would not have reasonably expected that the absence of immediate medical attention would result in placing her health in serious jeopardy or causing serious harm or impairment to the body. The authority of VA to pay these types of medical expenses is very limited. The Board considered the appellant’s lay statements where she asserts that she went to the emergency department, her condition had substantially worsened, and she was in severe distress. The Board finds that the contemporaneous medical records from St. Vincent’s Medical Center on April 3, 2015, show only “moderate” pain which had lasted already for one week is more probative than the later recollections of the Veteran, and these records preponderate against finding that the Veteran was in an emergent condition at the time of this treatment. As the requirements for reimbursement under 38 U.S.C. §§ 1725 or 1728 of there being a medical emergency which necessitated private hospital treatment and the lack of an available VA treatment facility are not met, the analysis does not need to proceed any further to the additional requirements of these provisions, as all provisions must be met to establish entitlement to reimbursement. See Melson v. Derwinski, 1 Vet. App. 334 (1991). The appeal in this matter must be denied. The Board has considered the doctrine of reasonable doubt. However, that doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves the claim. In this case, the preponderance of the   evidence is against the Veteran’s claim. Therefore, the doctrine of reasonable doubt is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mary E. Rude, Counsel