Citation Nr: 18152363
Decision Date: 11/21/18	Archive Date: 11/21/18

DOCKET NO. 16-22 330
DATE:	November 21, 2018
ORDER
Payment or reimbursement for medical expenses incurred due to a non-VA medical care at Summit Medical Center (SMC), on April 27, 2015 is granted.
FINDING OF FACT
The April 27, 2015 medical treatment at SMC was for a condition of such nature that a prudent layperson would have reasonably expected that delay in obtaining the treatment would have been hazardous to health; and an attempt to use the nearest VA medical facility at that time would not have been considered reasonable by a prudent layperson at that time. 
CONCLUSION OF LAW
Resolving all reasonable doubts in the Veteran’s favor, the criteria for entitlement to payment or reimbursement of the medical expenses incurred on April 27, 2015, at SMC, are met.  38 U.S.C. § 1725 (2012); 38 C.F.R. § 17.1002 (2017).

REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from August 2005 to March 2006. 
This appeal to the Board of Veterans’ Appeals (Board) is from a September 2015 decision by the Department of Veterans Affairs (VA) Tennessee Valley Veterans Healthcare System. 
Entitlement to payment or reimbursement for medical expenses incurred due to a non-VA medical care at SMC on April 27, 2015
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 due to 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.  
In the present case, the Veteran’s sole service-connected disability is depression, unrelated to the claimed medical condition (i.e. abdominal pain and shortness of breath).  Therefore, 38 U.S.C. § 1725 applies, as set forth below. 
Under 38 U.S.C. § 1725, payment or reimbursement for emergency services for non-service-connected conditions in non-VA facilities may also be authorized.  38 C.F.R. §§ 17.1000-03.  To be eligible for reimbursement under this authority, all of the following conditions must be satisfied: 
(a) The emergency services were provided in a hospital emergency department or a similar facility held out as providing emergency care to the public; 
(b) The claim for payment or reimbursement for the initial evaluation and treatment 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 (this standard would be met if there were 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); 
(c) A VA or other Federal facility/provider that VA has an agreement with to furnish health care services for veterans was not feasibly available and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson (as an example, these conditions would be met by evidence establishing that a veteran was brought to a hospital in an ambulance and the ambulance personnel determined that the nearest available appropriate level of care was at a non-VA medical center); 
(d) At the time the emergency treatment was furnished, the Veteran was enrolled in the VA health care system and had received medical services under authority of 38 U.S.C. Chapter 17 within the 24-month period preceding the furnishing of such emergency treatment; 
(e) The Veteran is financially liable to the provider of emergency treatment for that treatment; 
(f) The Veteran has no coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the emergency treatment (this condition cannot be met if the Veteran has coverage under a health-plan contract but payment is barred because of a failure by the Veteran or provider to comply with the provisions of that health-plan contract, e.g., failure to submit a bill or medical records within specified time limits, or failure to exhaust appeals of the denial of payment); 
(g) If the condition for which the emergency treatment was furnished was caused by an accident or work-related injury, the claimant has exhausted without success all claims and remedies reasonably available to the Veteran or provider against a third party for payment of such treatment; and the Veteran has no contractual or legal recourse against a third party that could reasonably be pursued for the purpose of extinguishing, in whole or in part, the Veteran’s liability to the provider; and 
(h) The Veteran is not eligible for reimbursement under 38 U.S.C. § 1728 for the emergency treatment provided.
Id.; 38 C.F.R. § 17.1002; Staab v. McDonald, 28 Vet. App. 50 (2016) (invalidating the current version of 38 C.F.R. § 17.1002(f)).
Analysis 
As an initial matter, the record does not reflect, and the Veteran has not reported, that the non-VA medical care at SMC, on April 27, 2015, was authorized in advance.  See 38 U.S.C. § 1703 (2012); 38 C.F.R. § 17.52 (2017).  Therefore, 38 U.S.C. § 1725 applies. 
Further, the Veteran has already met many of the substantive and administrative criteria for payment or reimbursement of non-service-connected medical care under 38 U.S.C. § 1725.  In this regard, the Agency of Original Jurisdiction (AOJ) has already determined that the claim for reimbursement was timely filed by the Veteran, she is, at least in part, financially liable to the private providers for the treatment, she was enrolled in the VA health care system and had received medical services under authority of 38 U.S.C. Chapter 17 within the 24-month period preceding the furnishing of such emergency treatment, she is not eligible for reimbursement under 38 U.S.C. 1728 for the emergency treatment provided, and the services in question were provided in a hospital emergency department.  See 38 C.F.R. §§ 17.1002(a)-(h). 
Therefore, the remaining issues are whether the medical events at SMC, on April 27, 2015, constituted an emergency; and whether a VA facility was feasibly available.  
The totality of the clinical evidence of record suggests that, on April 27, 2015, a prudent layperson in the Veteran’s position would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to her health.  In her February 2016 substantive appeal, the Veteran competently reported that she began to feel “lightheaded and dizzy” during her work, to the point that she “couldn’t longer stand on [her] feet.”  The pain “worsened” later that day, such that she “experienced palpitation, sharp abdominal pain, and confusion,” at which point her employer “excused [her] from work . . . [to] seek medical care.”  See February 2016 Substantive Appeal.  The clinical evidence of record supports the Veteran’s account, in that an April 27, 2015 SMH emergency treatment record reflects that the Veteran presented with “abdominal pain” and “nausea.”  Under these circumstances, the Board resolves all reasonable doubt in her favor and finds that a prudent layperson in the Veteran’s position would have reasonably expected that delay in seeking immediate medical care would have been hazardous to her health. 
The Board also finds that, on April 27, 2015 a VA medical facility with an emergency department was not feasibly available at that time and that attempts to use this alternative service beforehand would not have been considered reasonable by a prudent layperson.  In this regard, the Veteran has competently reported that she attempted to drive to the nearest VA medical facility upon leaving from her work, but that due to “morning traffic [which was] very intense,” she assessed that “it wouldn’t be safe neither for [her] nor for other commuters to stay on the road” and chose to go to the nearest medical facility with an emergency department, which was SMC.  See February 2016 Substantive Appeal (via VA Form 9).  Given the Veteran’s competent report, 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.
Accordingly, the Board concludes that payment or reimbursement of the Veteran’s non-VA medical treatment on April 27, 2015, at SMC, is warranted.  Her appeal is granted. 
 
MARJORIE A. AUER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. Kim, Associate Counsel