Citation Nr: 18151671 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 16-17 738 DATE: November 20, 2018 ORDER Payment or reimbursement of medical expenses incurred at a private hospital in Peoria, Illinois, on August 4, 2015, is granted. FINDINGS OF FACT 1. The Veteran served on active duty from April to October 1973. 2. The medical services provided at a private hospital in Peoria, Illinois, on August 4, 2015, were rendered in a medical emergency of such a nature that delay would have been hazardous to life or health, or in a situation in which federal facilities were not feasibly available and an attempt to use them beforehand would not have been reasonable. CONCLUSION OF LAW The criteria for entitlement to reimbursement of medical expenses incurred at a private hospital in Peoria, Illinois, on August 4, 2015, have been met. 38 U.S.C. §§ 1703, 1725, 1728 (2012); 38 C.F.R. §§ 17.120-17.121 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA is authorized to reimburse veterans for emergency medical treatment under 38 U.S.C. § 1725 and 38 U.S.C. § 1728. To be eligible for reimbursement under 38 U.S.C. § 1728, the treatment must have been for associated with a service-connected disability or the veteran must be a participant in a vocational rehabilitation program. 38 U.S.C. § 1728(a); 38 C.F.R. § 17.120. The Veteran did not meet the criteria for payment of authorized or unauthorized medical expenses of 38 U.S.C. § 1728. Accordingly, his claim for payment must be considered under the Veterans Millennium Healthcare and Benefits Act (Act), 38 U.S.C. § 1725; 38 C.F.R. §§ 17.1000-17.1008. For coverage under 38 U.S.C. § 1725, a veteran must be an individual who is an active Department health-care participant who was personally liable for emergency treatment furnished the veteran in a non-Department facility. In claims involving payment or reimbursement by VA for medical expenses incurred as a result of treatment at a private facility, there are three possible theories of entitlement: (1) the private medical services were authorized by VA; (2) the veteran is entitled to payment or reimbursement for services not previously authorized that are related to or aggravated a service-connected disability; or (3) the veteran is entitled to payment or reimbursement for services not previously authorized relating to a nonservice-connected disability. See 38 U.S.C. §§ 1703(a), 1725, 1728(a). Generally, the admission of a veteran to a non-VA hospital at VA expense must be authorized in advance. 38 C.F.R. § 17.54. Whether treatment was authorized is a factual, not a medical, determination. Similes v. Brown, 5 Vet. App. 555 (1994); 38 U.S.C. § 1703(a); 38 C.F.R. § 17.54. In the case of an emergency that existed at the time of admission, an authorization may be deemed a prior authorization if an application, whether formal or informal, by telephone, telegraph or other communication, made by the veteran or by others in his or her behalf, is made to VA within 72 hours after the hour of admission. 38 C.F.R. § 17.54. A veteran is an active Department health-care participant if the veteran is enrolled in the health care system established under § 1705(a) and received care within the 24-month period preceding the furnishing of such emergency treatment. 38 U.S.C. § 1725(b)(2). A veteran is personally liable for emergency treatment furnished the veteran in a non-Department facility if the veteran is financially liable to the provider of emergency treatment for that treatment; has no entitlement to care or services under a health-plan contract (determined, in the case of a health-plan contract as defined in §§ (f)(2)(B) or (f)(2)(C), without regard to any requirement or limitation relating to eligibility for care or services from any department or agency of the United States); has no other contractual or legal recourse against a third party that would, in whole, extinguish such liability to the provider; and is not eligible for reimbursement for medical care or services under § 1728. For purposes of this section, “emergency treatment” means medical care or services furnished, in the judgment of the Secretary, when Department or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable; when such care or services are rendered in a medical emergency of such nature that a prudent layperson reasonably expects that delay in seeking immediate medical attention would be hazardous to life or health. 38 U.S.C. § 1725(f)(1). The Veteran asserts that on August 4, 2015, he was seen in the emergency department of a private hospital in Peoria, Illinois, for two-day symptoms of a blood clot in his right lower extremity below the knee. He asserts that he was advised by a VA Telenurse to seek immediate treatment at a facility where a venous ultrasound could be performed. He contends the local VA outpatient clinic was not equipped to perform the test. Private treatment records reflect that the Veteran arrived at the emergency department at 15:53 and was clinically evaluated at 17:29, at which point he supplied a medical history of right lower leg pain for 10 days, gradually worsening since onset. He also indicated to hospital staff that he was at the hospital because a VA nurse was concerned about a blood clot. A right lower extremity ultrasound was performed and negative for a deep vein thrombosis (DVT). He reportedly then left the emergency department at 20:30 despite being advised that further evaluation was needed. It is unclear why he decided to leave at that time. Initially, the Veteran indicated at the time of treatment and throughout his arguments that a VA Telenurse advised him to seek immediate medical care for his right leg symptoms. The Board finds this contention to be credible. There is some discrepancy as to how long the Veteran had experienced symptoms. He has repeatedly stated that he had had leg pain for two days before calling the VA Telenurse. The private treatment records state “right lower leg pain for 10 days” and “right leg cramping past week.” If, in fact, the Veteran had been experiencing pain the right leg for a week to 10 days, he had several days in which to make an appointment at a local VA clinic. However, considering the totality of the evidence, it is at least as likely as not that the Veteran’s leg symptoms had worsened to the point at which he thought treatment was necessary as of August 4, 2015, which led to the call to the Telenurse. Further, it was the Telenurse who advised immediate treatment. In light of these facts, the Veteran’s situation was emergent in nature. Therefore, the question that remains is whether VA facilities were feasibly available. The only VA facility in Peoria is an outpatient clinic that closes at 4 pm (16:00) during the week. https://www.danville.va.gov/locations/Peoria_Illinois.asp. The events occurred on a Tuesday. The private hospital in Peoria was less than two miles from the Veteran’s home address on record with VA, but the VA clinic is over eight miles from his home address. Thus, while in theory, the VA clinic was still open when the Veteran left home, given that he checked in at the ED at 15:53, it is likely that even if the clinic could have seen the Veteran on a walk-in basis that afternoon, it would have been closed by the time he arrived. A common internet map search reveals that the VA Medical Centers (VAMCs) in Joliet, Illinois and Danville, Illinois, are each approximately two hours away by car. The question is whether these facilities were feasibly available. While the Veteran had been experiencing pain in the right leg for two to ten days, the symptoms became worse over time, leading him to contact VA TeleHealth services. The VA Telenurse then advised him that his symptoms could be a blood clot for which he should seek immediate treatment. Moreover, private treatment records state that he reported his pain at that time as 10 out of 10. In light of these facts, it is at least as likely as not that a prudent layperson would have believed that the two-hour delay in treatment would be hazardous to the his or her health. Therefore, the medical services provided at a private hospital on August 4, 2015, were rendered in a medical emergency of such a nature that delay would have been hazardous to life or health, and federal facilities were not feasibly available and an attempt to use them beforehand would not have been reasonable. The claim is granted. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel