Citation Nr: 18152528
Decision Date: 11/23/18	Archive Date: 11/23/18

DOCKET NO. 16-20 549
DATE:	November 23, 2018
ORDER
Entitlement to payment or reimbursement of private medical expenses for treatment at a non-VA facility incurred on May 18, 2015, to May 19, 2015, is denied.
FINDINGS OF FACT
1. Service connection has not been established for any disability.
2. The Veteran received medical care at the Summa Health System Emergency Department at Green on May 18, 2015; he was subsequently admitted to Barberton Hospital, where he underwent surgery on May 19, 2015.
3. VA facilities were available; the Veteran refused transport to a VA facility, including by ambulance, and an attempt to utilize VA facilities would not have been hazardous to life or health.
CONCLUSION OF LAW
The criteria for reimbursement or payment of private medical expenses incurred on May 18-19, 2015, have not been met.  38 U.S.C. §§ 1725, 1728; 38 C.F.R. §§ 17.120, 17.1000-17.1008. 
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran is claiming entitlement to reimbursement of private medical expenses incurred on May 18-19, 2015, for treatment at a non-VA medical facility.  The record indicates that the Veteran sought treatment at the Summa Emergency Department at Green (SEDG) on May 17, 2015, complaining of acute onset of left lower quadrant and left flank pain that started early that morning.  He was diagnosed with a left kidney stone which was expected to pass on its own.  He improved with therapy and wished to be discharged that morning, indicating that he would followup with a VA urologist as needed.
On May 18, 2015, the Veteran returned to SEDG with symptoms of lightheadedness and a feeling like his face and head were on fire.  He was concerned that he may have been having a poor reaction to the medication received the day prior.  While he continued to have left flank pain, he initially stated this pain was improved from the prior day.  Physical examination revealed mild lateral left flank tenderness, and the Veteran was ambulatory without difficulty.  He later complained of increased left flank pain, and the physician surmised he was then having obstructive uropathy and recommended he be admitted for continued treatment and urology evaluation for possible procedure.  
At that time, the Veteran was agreeable to this plan, and stated he did not want to go to a VA facility.  He requested transfer to Akron General Hospital, but there were no beds at this facility.  He then requested Barberton Hospital, where he was admitted.  He refused transport by ambulance and, because he was able to stand and ambulate without instability, he was transferred with his wife.
In his notice of disagreement, the Veteran stated that he presented at the Akron VA Clinic the morning of May 18, 2015, where he was evaluated by a nurse.  He states that after explaining his problems, she relayed the information to a VA physician, who concluded that his pain medication was wearing off, and there was nothing they could do for him.  He states that his pain was so bad at the time that he went straight from the VA clinic to SEDG, where they placed him back on pain management and determine he needed to be admitted.  He stated that he had no way to get to the VA Medical Center in Cleveland, Ohio, and he could not have withstood the ride of 50 miles due to his pain.  In his substantive appeal, the Veteran further stated that he never refused transport to a VA facility, and he was in so much pain he needed immediate help.  
Under 38 U.S.C. § 1728, VA may reimburse a Veteran for reasonable value of emergency treatment furnished in a non-VA facility, or in lieu of that, make payment directly to a hospital or other health care provider that furnished such treatment on behalf of the Veteran, if other requirements discussed below are met.  Generally, when VA facilities or other government facilities are not capable of furnishing economical hospital care or medical services because of geographical inaccessibility or are not capable of furnishing care or services required, VA may contract with non-VA facilities for care.
Reimbursement or payment for expenses not previously authorized may be made only under the following circumstances (all criteria a, b, and c must be met):
(a) for Veterans with service connected disabilities, treatment not previously authorized is rendered for (1) an adjudicated service-connected disability; or (2) a nonservice-connected disability associated with and held to be aggravating an adjudicated service-connected disability; or (3) any disability of a Veteran who is permanently and totally disabled as a result of a service-connected disability; or (4) for any illness, injury or dental disability in the case of a Veteran who is participating in a rehabilitation program under 38 U.S.C. Chapter 31;
(b) such treatment was rendered in a medical emergency of such nature that delay would have been hazardous to life or health; and
(c) VA or other Federal facilities were not feasibly available, and an attempt to use them beforehand would not have been reasonable, sound, wise, or practical.
See 38 U.S.C. § 1728; 38 C.F.R. §§ 17.52, 17.120.
Failure to satisfy any one of the three criteria (a, b, or c) listed above precludes VA from paying unauthorized medical expenses incurred at a private hospital.  38 C.F.R. § 17.120; Zimick v. West, 11 Vet. App. 45, 49 (1998).  Also, no reimbursement or payment of services not previously authorized will be made when such treatment was procured through private sources in preference to available Government facilities.  38 C.F.R. § 17.130.
The record reflects that service connection is not in effect for any disability.  Thus, the Veteran does not meet the threshold criteria under 38 U.S.C. § 1728.  Therefore, the Veteran is not eligible for medical expense reimbursement under 38 U.S.C. § 1728 for the hospital treatment provided, regardless of the nature of the treatment. 
Because the Veteran did not meet the criteria for payment of authorized or unauthorized medical expenses of 38 U.S.C. § 1728, the Veteran’s claim for payment must be considered under criteria for determining entitlement under the Veterans Millennium Healthcare and Benefits Act, 38 U.S.C. § 1725; 38 C.F.R. §§ 17.1000-17.1008. 
Pursuant to 38 C.F.R. § 17.1002, VA may make payment or reimbursement of costs for emergency treatment for non-service-connected disabilities in non-VA facilities, but only if all of the following criteria are met:
(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 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 does not have coverage under a health-plan contract that would fully extinguish the medical liability 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 the 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, the veteran’s liability to the provider; 
(h) The veteran is not eligible for reimbursement under 38 U.S.C. 1728 for the emergency treatment provided (38 U.S.C. 1728 authorizes VA payment or reimbursement for emergency treatment to a limited group of veterans, primarily those who receive emergency treatment for a service-connected disability);
See 38 C.F.R. § 17.1002 (a)-(h).
In the instant case, a review of the record indicates that of the requisite criteria set forth above, there is at least one that the Veteran does not satisfy.  Thus, reimbursement under the provisions of 38 U.S.C. § 1725 and 38 C.F.R. § 17.1002 cannot be granted for treatment on May 18-19, 2015.  
The pertinent issue in the instant case is whether criterion (c) is satisfied; that is, whether VA facilities were feasibly available.  The Board again notes that regulations specify that this standard would be met if an attempt to use VA facilities beforehand would be considered hazardous to life or health by a prudent layperson.  See 38 C.F.R. § 17.1002(c).
Per the Veteran’s own statements, he left the VA Clinic in Akron and immediately proceeded to SEDG.  While he contended that he returned to SEDG due to the severity of his pain, which was ignored by the VA Clinic nurse and doctor, SEDG records indicate that he actually presented with mild left flank pain that had improved as compared to the day before.  Furthermore, despite the Veteran’s assertions, SEDG records indicate that he specifically refused to be transferred to a VA facility for admission, and instead requested two private hospitals.  Finally, while the Veteran stated that he had no way to get to the VA Medical Center in Cleveland, and even if he did he could not have withstood the ride due to severe pain, SEDG records indicate that he was offered ambulance transportation but declined, and was transferred with his wife with an ability to stand and ambulate without instability.
In the instant case, it is clear that the Veteran chose to present to SEDG after what he perceived to be inadequate care from the VA Clinic in Akron, Ohio.  Even though he asserts that he suffered from such severe pain that he needed to go straight to the emergency room after leaving the VA Clinic, SEDG records indicate that he reported his pain was mild and had actually improved as compared to the day before.  Therefore, the Board finds that a prudent layperson would have considered treatment at a VA facility was reasonable at the time he sought treatment at SEDG.  Finally, after being discharged from SEDG, it is clear from the record that he specifically chose to be admitted at Barberton Hospital after refusing to be transported by ambulance to a VA facility and his first choice, Akron General Hospital, had no beds available.  
The evidence indicates that prior authorization was not obtained, a VA facility was feasibly available, given the Veteran’s symptoms a prudent layperson would not have believed transport to a VA facility would not have been hazardous to the Veteran’s life or health, and the Veteran specifically refused transport by ambulance to a VA facility and instead requested admission to a private facility.  Based on such evidence, payment or reimbursement of private medical expenses incurred for treatment at a non-VA medical facility on May 18-19, 2015, is not warranted.  The preponderance of the evidence is against the claim, and there is no reasonable doubt to be resolved on the matter.  38 U.S.C. § 5107(b).

 
Kristin Haddock
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Christopher Murray, Counsel