Citation Nr: 18153229 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-24 616 DATE: November 27, 2018 ORDER Payment or reimbursement of medical expenses incurred in connection with the Veteran’s non-VA care at Fawcett Memorial Hospital on December 14, 2015 is denied. FINDINGS OF FACT 1. Payment or reimbursement of medical expenses incurred in connection with the Veteran’s non-VA care at Fawcett Memorial Hospital on December 14, 2015 was not pre-authorized by VA. 2. The December 14, 2015 medical treatment at Fawcett Memorial Hospital was not for a condition of such nature whereby delay in obtaining the treatment would have been hazardous to life or health. CONCLUSION OF LAW The criteria for payment or reimbursement of the medical expenses incurred at Fawcett Memorial Hospital on December 14, 2015 are not met. 38 U.S.C. §§ 1703, 1725, 1728, 5107; 38 C.F.R. §§ 17.52, 17.120, 17.1000-1008. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the Air Force from April 1969 to February 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 decision issued by the Department of Veterans Affairs Medical Center (VAMC) in Bay Pines, Florida. The Veteran contends that his need for medical care was emergent, the only available VA appointment was too far out for his care, and the VA facility was unable to see him earlier, such that VA facilities were not “reasonably available” for the provision of care. See April 2016 VA form 9. Specifically, the Veteran contends that on December 9, 2015 at 10:30 am, he became very tired and took a nap, which he never does, and did not wake up until seven hours later at 5:30 pm. He states that this went on for six to eight days. He notes that on December 6, 2016, he slept twelve to fourteen hours and his daughter had police come to his condominium and wake him up as he was not answering the telephone. He asserts that he went to the VA at Port Charlotte in Florida on December 14, 2015 and was informed that the next available appointment was not until December 23, 2015. He did not believe that he could not wait until December 23, 2015 to find out what was wrong; therefore, he went to the Fawcett Memorial Hospital in Port Charlotte, Florida, which was five minutes from the VA Clinic. He contends that the doctor at Fawcett Memorial Hospital did not find anything wrong and suggested that he go to the VA as he potentially had mono or chronic fatigue syndrome. He states that on December 23, 2015, he was still sleeping twelve to fourteen hours per day and more blood tests and stool tests were ordered by the nurse as the doctor was out. On January 6, 2016, he saw a doctor and it was determined that he had a low iron count and was put on iron pills. He contends that he should not have to wait nine days to see a doctor at the VA. See February 2016 notice of disagreement; April 2016 VA Form 9; June 2016 statement; May 2017 Informal Hearing Presentation. The Veteran’s representative contends that this felt like an emergency to the Veteran as he was sleeping twelve to fourteen hours per day and, after eight days, his symptoms were not going away. See May 2017 Informal Hearing Presentation. When VA facilities are not capable of furnishing required care or services, VA may contract with non-VA facilities in order to furnish certain care, including hospital care or medical services for the treatment of medical emergencies that pose a serious threat to the life or health of a Veteran receiving medical services in a VA facility, until such time following the furnishing of care in the non-VA facility as the Veteran can be safely transferred to a VA facility. 38 U.S.C. § 1703 (a)(3); 38 C.F.R. § 17.52. The admission of a Veteran to a non-VA hospital at the expense of VA must be authorized in advance. 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. The Veteran does not contend, and the evidence does not otherwise suggest, that the Veteran’s treatment at Fawcett Memorial Hospital on December 14, 2015 was authorized in advance. When a Veteran receives treatment at a non-VA facility without prior authorization, such as the case here, there are two statutes that allow for claimants to be paid or reimbursed for the medical expenses incurred for that treatment, 38 U.S.C. § 1728 and 38 U.S.C. § 1725. As service connection is in effect for the Veteran’s posttraumatic stress disorder (PTSD) rated 100 percent disabling, 38 U.S.C. § 1728, rather than 38 U.S.C. § 1725, applies to this claim. Under 38 U.S.C. § 1728, and implementing regulation 38 C.F.R. § 17.120, reimbursement of certain medical expenses will be paid on the basis of a claim timely filed, under the following circumstances: (a) The care and services rendered were either: (1) for an adjudicated service-connected disability, or (2) for a nonservice-connected disability associated with and held to be aggravating an adjudicated service-connected disability, or (3) for any disability of a veteran who has a total disability, permanent in nature, resulting from a service-connected disability, or (4) for any injury, illness, or dental condition in the case of a veteran who is participating in a rehabilitation program and who is medically determined to be in need of hospital care or medical services for reasons set forth in 38 C.F.R. § 17.47(i) (formerly § 17.48(j)); and, (b) The services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health; and, (c) No VA or other Federal facilities were feasibly available and an attempt to use them beforehand would not have been reasonable. The provisions in 38 C.F.R. § 17.120 are conjunctive, not disjunctive. Malone v. Gober, 10 Vet. App. 539 (1997) (finding that all three eligibility requirements under 38 U.S.C. § 1728 must be met). As noted above, service connection is in effect for PTSD, rated 100 percent disabling. Accordingly, the Veteran meets the criteria of 38 C.F.R. § 17.120 (a)(3). The issue is, therefore, whether the Veteran was treated for an emergent condition and whether federal facilities were feasibly available. Both medical and lay evidence may be considered in a prudent layperson evaluation for determining what constitutes a “medical emergency.” That is, VA should weigh “the totality of the circumstances” to determine whether a prudent layperson would consider the situation emergent. Swinney v. Shinseki, 23 Vet. App. 257, 264-266 (2009). The Veteran is competent to describe his symptoms on December 14, 2015. Further, the Board acknowledges that the appointment profile from Port Charlotte Community Based Outpatient Clinic (CBOC) shows an appointment on December 14, 2015 cancelled by the clinic. However, there is no record of the Veteran attempting to schedule another appointment. The December 14, 2015 Fawcett Memorial Hospital private treatment record shows that the Veteran complained of sleeping all day long, fatigue, loss of energy, and feeling worn out. He denied ataxia, faintness, and fever. He denied chills and denied any skin, cardiovascular, gastrointestinal, genitourinary, musculoskeletal conditions. He reported generalized weakness and denied headache, syncope, confusion, vision changes, dizziness, and gait problems. The diagnosis provided was fatigue caused by an electrolyte abnormality. The Board is sympathetic to the Veteran’s contentions. However, after a review of the Veteran’s statements and the medical evidence of record, the Board finds the evidence does not support finding that a medical emergency existed on December 14, 2015. The Veteran’s only symptom was fatigue that had lasted six to eight days before the Veteran sought treatment. It is not shown 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). As the facts do not meet the medical emergency requirement under 38 U.S.C. § 1728, reimbursement is prohibited. The Board need not address other criteria such as the feasible availability of VA facilities, as the failure to meet any of the criteria precludes payment or reimbursement of unauthorized medical expenses. See Malone. The Board finds that the preponderance of the evidence is against payment or reimbursement of unauthorized medical expenses incurred during treatment at Fawcett Memorial Hospital on December 14, 2015. There is no doubt to be resolved and his claim must be denied. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Samuelson, Counsel