Citation Nr: 18151873 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 15-00 966 DATE: November 20, 2018 ORDER Entitlement to reimbursement of medical expenses incurred at Florida Hospital on April 3, 2014, is granted. FINDING OF FACT The Veteran received private emergency treatment on April 3, 2014, for a condition that a prudent layperson would have reasonably expected would have been hazardous to life or health if treatment was delayed; and no VA emergency facility was feasibly available. CONCLUSION OF LAW The criteria for entitlement to reimbursement of medical expenses incurred at Florida Hospital on April 3, 2014, have been met. 38 U.S.C. §§ 1725, 1728 (2012); 38 C.F.R. §§ 17.120, 17.1000-17.1008 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from May 1999 to March 2004. She testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing in November 2018. Entitlement to reimbursement of medical expenses incurred at Florida Hospital on April 3, 2014 When a veteran receives emergency treatment at a non-VA facility without prior authorization, as in the case here, reimbursement may be authorized under either 38 U.S.C. § 1728 or 38 U.S.C. § 1725 (2012). 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 § 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 § 1728, but is simply more restrictive in its eligibility requirements. Accordingly, the Board will only discuss the criteria under § 1728 and its implementing regulation, § 17.120. As relevant to this claim, 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. Here, the Veteran has been in receipt of a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities since August 27, 2008 (from August 27, 2009 to December 31, 2008; and again, from February 1, 2009). Accordingly, the first criterion under section 1728 is satisfied. The second criterion, “emergency treatment” requires 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. 38 C.F.R. § 17.120(b); see also 38 U.S.C. § 1728(c) (providing that the term “emergency treatment” in this section has the same meaning as given to this term in section 1725(f)(1) of the statute). This standard is met by an emergency medical 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 bodily organ or part. 38 C.F.R. § 17.120(b). In the instant case, the Veteran reported that on March 31, 2014, she began to feel discomfort in her right eye. For the next several days she treated the discomfort with a warm compress hoping that the condition would improve. However, on April 3, 2014, she woke up to the right side of her face, including her eye, being extremely swollen to the point where her eyelid was almost swollen shut. She immediately contacted VA. VA treatment records from April 3, 2014, document that the Veteran was advised “based on your responses, you need to [be] seen urgently by a doctor now in a hospital ER or urgent care center or your condition could worsen.” The call occurred at 4:01pm; which the Veteran testified was already passed the time to be seen by her primary care physician. She then drove to the VA Medical Center at Lake Baldwin to find that the doors were locked. She was advised that all the doctors had left for the day, and there was no one else on the property that would be able to attend to her. Given this information, the Veteran then sought treatment at an Urgent Care facility. After being told that they did not tend to veterans without any medical insurance, the Veteran testified that she felt she had no choice but to go to the emergency room at Florida Hospital. Given that the VA treatment records specifically document that the Veteran was advised to “be seen urgently by a doctor now in a hospital ER or Urgent Care center,” the Board finds that the second criterion has been met. Essentially, VA accepted that the Veteran’s condition was emergent upon arrival. The issue in this case turns on whether or not VA facilities were feasibly available—the third criterion. As indicated by the Veteran on her VA Form 9, she first attempted to obtain treatment from her local VA facility. However, when she presented shortly after contacting VA, the doors were locked, she was advised that all the doctors had left for the day, and there was no on available clinician to treat her medical condition. Given the Veteran’s symptomatology, the fact that she was specifically advised that her condition was urgent in nature, and the fact that she had first attempted to use a VA facility only to find that the doors were locked and there were no doctors available to treat her, the Board finds that a VA facility could not have been considered a reasonable option for her medical needs. As such, the third criterion is met. Therefore, all the criteria for payment or reimbursement of medical expenses incurred in connection with treatment provided at Florida Hospital on April 3, 2014, have been met. (Continued on the next page)   The Veteran’s appeal is therefore granted in its entirety. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Martha R. Luboch, Associate Counsel