Citation Nr: 18151906 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 15-04 527 DATE: November 20, 2018 ORDER Reimbursement or payment for medical expenses incurred due to non-VA medical care on November 16, 2013, at Florida Hospital Fish Memorial (FHFM), is granted. Reimbursement or payment for medical expenses incurred due to non-VA medical care on April 21, 2014, at FHFM, is granted. FINDING OF FACT The evidence is at least in relative equipoise as to whether the non-VA medical care on November 16, 2013, and April 21, 2014, at FHFM, were for conditions of such nature that a prudent layperson would have reasonably expected that delay in obtaining the treatments would have been hazardous to health; and an attempt to use the nearest VA medical facility would not have been considered reasonable by a prudent layperson at those times. CONCLUSIONS OF LAW 1. The criteria for entitlement to payment or reimbursement of the medical expenses incurred on November 16, 2013, at FHFM, are met. 38 U.S.C. §§ 1703(a), 1728, 5107 (2012); 38 C.F.R. §§ 17.52, 17.120, 17.130, 17.1000-1008 (2017). 2. The criteria for entitlement to payment or reimbursement of the medical expenses incurred on April 21, 2014, at FHFM, are met. 38 U.S.C. §§ 1703(a), 1728, 5107 (2012); 38 C.F.R. §§ 17.52, 17.120, 17.130, 17.1000-1008 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from September 1949 to April 1953. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from January and May 2014 decisions issued by the Department of Veterans Affairs Medical Center (VAMC) in Orlando, Florida. In his December 2014 substantive appeal (via a VA Form 9), the Veteran requested a Board hearing. While the requested hearing was scheduled for September 2018, the record reflects that the Veteran cancelled his hearing request for that hearing, and did not subsequently request a new hearing. His hearing request is deemed withdrawn. 38 C.F.R. § 20.702(d) (2017). Medical Expense Reimbursement Pertinent Law and Regulations When VA facilities or other government facilities are not capable of furnishing economical hospital care or medical services because of geographic inaccessibility or because they are not capable of furnishing care or services required, VA may contract with non-VA facilities to provide the appropriate care. 38 U.S.C. § 1703 (2012); 38 C.F.R. § 17.52 (2017). Further, in general, if VA is to provide payment or reimbursement of medical expenses incurred in connection with a Veteran’s care at a non-VA hospital, the care must be authorized in advance. See 38 U.S.C. § 1703; 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 is made to VA within 72 hours after the hour of admission. 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). When, however, a Veteran receives treatment at a non-VA facility without prior authorization, two statutes allow for payment or reimbursement for the medical expenses incurred for that treatment, specifically, 38 U.S.C. §§ 1725 and 1728 (2012). Application of either statute is generally dependent on whether the Veteran has an adjudicated service-connected disability. As relevant, 38 U.S.C. § 1728 applies when an unauthorized emergency treatment was rendered to a veteran in need of such emergency treatment for any disability of that veteran who has a total disability permanent in nature resulting from a service-connected disability. 38 U.S.C. § 1728 (2012); 38 C.F.R. § 17.120(a)(3) (2017). Given that the Veteran is currently in receipt of a total disability rating based upon individual unemployability, the Board finds that 38 U.S.C. § 1728 is applicable. Under 38 U.S.C. § 1728, VA shall reimburse the expenses of care for eligible veterans from a private or public (or Federal) hospital not operated by VA, or of any other medical services not previously authorized (including transportation) when there have been: (a) care and services not previously authorized that were rendered in a medical emergency of such nature that delay would have been hazardous to life or health; and (b) VA or other Federal facilities were not feasibly available, and an attempt to use them beforehand or obtain prior VA authorization for the services required would not have been reasonable, sound, wise, or practicable, or treatment had been or would have been refused. 38 C.F.R. § 17.120(a) (2017). As for what constitutes a medical emergency, emergency treatments not previously authorized are those rendered in 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 death. 38 C.F.R. § 17.120(b). 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). Analysis As an initial matter, the record does not reflect, and the Veteran has not reported, that the November 16, 2013 and/or April 21, 2014 non-VA medical care at FHFM was authorized in advance. See 38 U.S.C. § 1703 (2012); 38 C.F.R. § 17.52 (2017). Therefore, 38 U.S.C. § 1728 applies. The remaining issues are whether the medical event on those two dates were emergent; and whether a VA facility was feasibly available at those times. When considering this evidence, the Board resolves all reasonable doubt in the Veteran’s favor and finds that reimbursement or payment of these medical expenses incurred on November 16, 2013, and on April 21, 2014, at FHFM, is warranted. The totality of the clinical evidence of record suggests that, on November 16, 2013, and on April 21, 2014, a prudent layperson in the Veteran’s position would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to his health. In this regard, the Veteran has competently reported that he sought emergency care on November 16, 2013, given that his “skin condition was open and bleeding at the time” in addition to “. . . clotting issues,” which he assessed were “potentially life threatening.” See June 2014 Statement. The clinical evidence of record also supports his report, as the FHFM emergency treating physician assessed that the Veteran presented with leg edema and the condition was “worsening” with constant “leg pain,” see November 16, 2013 FHFM emergency treatment record, which reasonably suggests that the Veteran was experiencing acute symptoms of sufficient severity at that time. As for the April 21, 2014 non-VA medical care, the emergency treating physician observed that the Veteran presented with “rash and left forearm and pubic mound areas” which caused “itching and redness” on “constant” basis, reasonably suggestive of hazardous medical condition to a layperson without medical expertise or knowledge. Under these circumstances, the Board resolves all reasonable doubt in the Veteran’s favor and finds that a prudent layperson in his position would have reasonably expected that delay in seeking immediate medical care would have been hazardous to his health on November 16, 2013, and on April 21, 2014. The Board also finds that a VA medical facility with an emergency department was not feasibly available on November 16, 2013, and on April 21, 2014, and an attempt to use this alternative service beforehand would not have been considered reasonable by a prudent layperson. In this regard, the nearest VA Medical Center (VAMC) with an urgent care (Orlando VAMC) was more than three hours away from the Veteran’s residence. The Veteran accordingly sought emergency care from FHFM, which was merely eighteen minutes away from his residence. Therefore, the Board finds that the evidence is at least in relative equipoise as to whether a VA medical facility was not feasibly available given that an attempt to use the nearest VA medical facility would not have been considered reasonable by a prudent layperson under the above-described circumstances. (Continued on the next page) Accordingly, the Board concludes that payment or reimbursement of the Veteran’s non-VA treatment at FHFM on November 16, 2013, and on April 21, 2016, is warranted. His appeal is granted. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Kim, Associate Counsel