Citation Nr: 18148467 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 15-07 591 DATE: November 7, 2018 ORDER Entitlement to payment or reimbursement of the cost of medical services received at Central Florida Hospital (CFH) on August 21, 2014 is granted subject to the regulations governing the payment or reimbursement of private medical services. FINDING OF FACT The treatment received at the CFH emergency room (ER) was for a medical emergency and a VA or other federal facility was not feasibly available to provide the treatment. CONCLUSION OF LAW The criteria for entitlement to payment or reimbursement of the cost of medical services received at CFH on August 21, 2014 have been met. 38 U.S.C. § 1725; 38 C.F.R. § 17.1003. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1962 to November 1966. This matter is on appeal before the Board of Veterans Appeals (Board) from a September 2014 decision of the Department of Veterans Affairs Medical Center (VAMC) in Orlando, Florida. In August 2018, a Board videoconference hearing was held before the undersigned; a transcript of the hearing is of record. 1. Entitlement to payment or reimbursement of the cost of medical services received at Central Florida Hospital (CFH) on August 21, 2014. The Veteran has claimed payment or reimbursement for the cost of medical treatment he received at the CFH ER on August 21, 2014. This treatment was not pre-authorized by VA. See 38 C.F.R. § 17.52(a), generally indicating that VA must authorize non-VA treatment at private facilities. Also, the Veteran does not have a total and permanent service-connected disability rating and this treatment was not for any service-connected disability or for any disability that was aggravating a service-connected disability. Likewise, the treatment was not for any injury or illness incurred in relation to participation in a vocational rehabilitation program. Consequently, the Veteran is not eligible for payment or reimbursement for the claimed emergency treatment under 38 U.S.C. § 1728. See 38 C.F.R. § 17.120. The Veteran has reported that the condition for which the private emergency treatment was provided in this case was the result of a fall and that his service-connected disabilities tend to cause him to fall. However, the applicable regulation cited above does not include a provision allowing for payment or reimbursement for the cost of treatment for conditions resulting from injury caused by a service-connected disability. Id. Accordingly, potential payment or reimbursement is not available under 38 U.S.C. § 1728. Id. Nonetheless, payment or reimbursement for private emergency medical treatment may be considered under 38 U.S.C. § 1725. The primary requirements for payment or reimbursement under this statute are that the Veteran is treated in an emergency department or similar facility held out as providing emergency treatment to the public; the treatment received 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; and a VA or federal facility was not feasibly available to provide the treatment. 38 C.F.R. § 17.1002(a-c). The VAMC denied the Veteran’s claim in the January 2015 statement of the case (SOC) based on findings that he had other insurance to pay for at least part of the cost of the CRH treatment; that the treatment he received was non-emergent; and that VA facilities were feasibly available to provide the treatment. Regarding the non-emergent finding, the VAMC indicated that the CFH ER record indicates that the Veteran was hemodynamically stable while at the ER and that he had adequate cognitive status. The claims file pertaining to this appeal compiled by the VAMC does not contain the ER record referred to in the January 2015 statement of the case. It also does not contain any other medical records documenting the treatment the Veteran received at CFH on August 21, 2014. Consequently, as the Board does not wish to delay final adjudication of this appeal, it will decide the instant claim by comparing the reporting of the Veteran to the information presented by the VAMC in the January 2015 statement of the case. The Veteran is not prejudiced by this course of action as the Board is granting the appeal. In his November notice of disagreement and a January 2015 statement accompanying his Form 9, the Veteran reported that in mid-August 2014, he fell forward, landing on his nose. A few days later, he was having trouble with his right eye, including black streaks running through about a third of his vertical field of vision and light flashes when he moved his eyes from side to side. Consequently, he became concerned that he had a detached retina. He phoned a VA triage nurse and was advised by the nurse to go to the nearest ER. The Veteran informed the triage nurse that he would be fine with going to his local VA outpatient eye clinic. However, the nurse essentially ordered him to go to the nearest ER, saying “I told you to go to the nearest ER.” The nurse explained that that she was not able to guarantee that he would be seen that day by a clinician if he did go VA eye clinic. The Veteran complied with the nurse’s order and reported to the ER at CFH in Sanford, Florida on August 21, 2014. At the ER, he was told that he had a detached retina and the ER personnel recommended that he be seen for follow-up by a private eye specialist. Not wishing to continue with additional private medical care, he sought follow-up with his VA primary care team who arranged for him to be seen by a VA eye specialist. The specialist informed him that he had been right to be concerned about a detached retina but that he did not have this problem. Instead, he apparently had a lesser eye injury for which he received follow-up care from the VA eye clinic. The Veteran has also noted that he was no longer covered by Medicare Part B at the time he received the August 21, 2014 2014 treatment from CRH. His only insurance was Medicare Part A and VA healthcare. The above summarized evidence reasonably indicates that the Veteran was treated at an emergency department on August 21, 2014, the CFH ER. 38 C.F.R. § 17.1002 (a). It also reasonably indicates that after his fall, he had a legitimate concern that he might have a detached retina. Reputable medical authority describes retinal detachment as “an emergency situation” requiring immediate medical attention to protect the patient’s vision. See e.g. Mayo Clinic website entry on retinal detachment found at: https://www.mayoclinic.org/diseases-conditions/retinal-detachment/symptoms-causes/syc-20351344. Given the legitimate concern of having the detached retina and the specific order from the VA triage nurse to report to the nearest ER, the Veteran’s condition 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 his health. 38 C.F.R. § 17.1002 (b). Concerning the availability of a VA facility, it appears from the P.O. Box address of record that the Veteran was living in Geneva, Florida in August 2014, which is about 14 miles away from CFH. In contrast, in August 2014, the nearest VA facility to Geneva with an ER appears to have been the Tampa VAMC, which is approximately 116 miles from Geneva. (The Orlando VAMC is significantly closer to Geneva but this VAMC did not yet have an ER in August 2014. See e.g. https://www.orlando.va.gov/newmedcenter/orlmedcenternew.asp). There is also no indication that there was any closer non-VA federal facility that would have been able to provide treatment to the Veteran. Given that the VA triage nurse instructed the Veteran to report to the nearest ER rather than a VAMC ER or other VA clinic; given that the nearest VAMC ER was approximately 100 miles further away; and given the lack of any indication that an alternative federal facility was available, an attempt to use a VAMC or other federal facility would not have reasonable by a prudent layperson. 38 C.F.R. § 17.1002 (c). Accordingly, a VA or other federal facility was not feasibly available to provide the treatment the Veteran received at the CFH ER On August 21, 2014. Id. Considering the other necessary requirements for payment or reimbursement under 38 U.S.C. § 1725, the VA treatment records of record establish that the Veteran was enrolled in the VA healthcare system and had received VA medical treatment within the 24 months prior to August 21, 2014. It is also reasonably established that the Veteran had financial liability for at least some of the cost of the CFH medical services received, as the claims file contains at least one bill received by the Veteran for these services and the Veteran also testified that he had financial liability. Additionally, although the VAMC justified its denial in part on the Veteran having Medicare Part B insurance to cover part of the cost of the CFH ER treatment, the Veteran has submitted documentation indicating that his Medicare Part B coverage ended on January 31, 2014. Moreover, the provision that previously barred payment or reimbursement under 38 U.S.C. § 1725 for individuals with private insurance that covered part of the cost of private emergency treatment has been amended. See 83 Fed. Reg. 974 (Jan 9, 2018), amending 38 C.F.R. § 17.1003 (f). This amendment applies to the Veteran’s appeal. Id. The amended provision only bars payment or reimbursement for individuals who have health coverage that would fully extinguish their medical liability to the private provider in a particular case. Id. In this case, it is evident that the Veteran did not have health coverage that fully extinguished his medical liability to CFH. Finally, the emergency treatment from CFH was not furnished in relation to an accident or work injury and as explained above, the Veteran is not eligible for reimbursement under 38 C.F.R. § 1728. Consequently, under 38 U.S.C. § 1725, all the other basic requirements for VA payment or reimbursement to the Veteran for the cost of the CFH services have been met. 38 C.F.R. § 17.1002(d-h). In sum, as all the controlling regulatory criteria have been met, basic entitlement to payment or reimbursement of the cost of the medical services received at CFH on August 21, 2014 is granted under 38 U.S.C. § 1725. 38 C.F.R. § 17.1002(a-h). The actual amount of payment or reimbursement the Veteran will receive is governed by 38 C.F.R. § 17.1005 (as amended on January 9, 2018). R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Dan Brook, Counsel