Citation Nr: 18149917 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-53 311A DATE: November 14, 2018 ORDER Entitlement to payment or reimbursement for the cost of unauthorized medical treatment provided from May 13 to May 14, 2016, at John D. Archbold Memorial Hospital is denied. FINDINGS OF FACT 1. The Veteran received medical treatment at John D. Archbold Memorial Hospital on May 13, 2016, for a complaint of a three-week history of right-side neck and shoulder pain. He was diagnosed with cervical radiculopathy and discharged a few hours later, on May 14, 2016. 2. A prudent layperson would not believe the symptoms the Veteran experienced prior to treatment at John D. Archbold Memorial Hospital were emergent in nature. 3. A VA facility was feasibly available considering the non-emergent nature of the Veteran’s symptoms. CONCLUSION OF LAW The criteria for establishing entitlement payment or reimbursement for unauthorized medical treatment received at John D. Archbold Memorial Hospital from May 13 to May 14, 2016, have not been 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 FINDINGS AND CONCLUSION The Veteran served on active duty in the Army from August 1977 to August 1980. 1. Reimbursement for unauthorized medical treatment. The Veteran was seen in the emergency department at John D. Archbold Memorial Hospital on May 13, 2016 at approximately 11:32 p.m., after reporting a three-week history of a dull aching right-sided neck pain that radiated into the shoulder. He was diagnosed with cervical radiculopathy and discharged a few hours later, at approximately 1:06 a.m. on May 14, 2016, with instructions to follow up with his primary care physician at VA the next week. The Veteran was denied reimbursement for treatment at John D. Archbold Memorial Hospital on the basis that it was non-emergent care. See 38 C.F.R. § 17.120. The Veteran contends that his pain was unbearable and that it was an emergency. He indicates that because he went to the emergency department at 11:30 p.m., there was no VA within reasonable driving distance. When a veteran receives emergency treatment at a non-VA facility that has not contracted with VA, and without prior authorization, reimbursement may be authorized under either 38 U.S.C. § 1728 or 38 U.S.C. § 1725. Section 1728 of the statute is applicable and more favorable to the claim, as there are less requirements for establishing eligibility for reimbursement under this section than under section 1725, which concerns treatment for nonservice-connected disabilities or for veterans who do not have a service-connected disability rated as permanent and total. Section 1725 does not afford a basis for eligibility independent from section 1728, but is simply more restrictive in its eligibility requirements. Here, at the time of treatment at issue, in May 2016, the Veteran was assigned a total disability rating based on individual unemployability due to his service-connected disabilities (TDIU). Accordingly, the Veteran is eligible for payment or reimbursement under the provisions of 38 C.F.R. § 1728. To receive payment or reimbursement under § 1728 for the expenses of emergency treatment, not previously authorized, in a private or public (or Federal) hospital not operated by VA, the following three conditions must be satisfied: 1. The treatment was for an adjudicated service-connected disability, or for any disability when the veteran has a total disability permanent in nature resulting from a service-connected disability; and 2. The treatment was for a medical emergency of such 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 3. VA or other Federal facilities that VA has an agreement with to furnish health care services for veterans were not feasibly available and an attempt to use them beforehand or obtain prior authorization for the services required would not have been reasonable, sound, wise, or practicable, or treatment had been or would have been refused. 38 U.S.C. § 1728(a); 38 C.F.R. § 17.120. The standard for finding that services were rendered in a “medical emergency” under 38 U.S.C. § 1728 is the same as that defined in 38 U.S.C. § 1725. Therefore, the claim for payment or reimbursement for initial evaluation and treatment must 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 does not demonstrate that treatment at John D. Archbold Memorial Hospital was rendered in a medical emergency, and that as such, a VA facility was feasibly available. As noted above, the Veteran sought treatment at the emergency department of John D. Archbold Memorial Hospital for right side neck and shoulder pain, which he reported that he had been experiencing for three weeks. He was diagnosed with cervical radiculopathy and discharged the next day, with instructions to follow up with his primary care doctor the next week. The Board acknowledges the Veteran’s contention that his pain was unbearable when he sought treatment, but nevertheless finds it significant that the Veteran reported to the treating doctor that he had been experiencing the pain for three weeks prior to seeking treatment. Waiting three weeks prior to seeking treatment does not support the assertion that the condition was of such a severity to constitute a medical emergency. As such, the Board concludes that there is no indication in the record that the Veteran’s neck and shoulder pain was of such severity that 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, or 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. Simply stated, the evidence in this case does not support the lay person test. The Veteran’s own actions were inconsistent with his statements. (Continued on the next page)   Accordingly, the Board finds that the preponderance of the evidence is against payment or reimbursement of unauthorized medical expenses incurred for treatment at John D. Archbold Memorial Hospital from May 13 to May 14, 2016, and the claim is denied. 38 U.S.C. §§ 1728, 5107. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Nelson, Counsel