Citation Nr: 18153587 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 16-15 368 DATE: November 29, 2018 ORDER Payment or reimbursement for treatment rendered at a private hospital on May 4, 2015 is denied. Payment or reimbursement for treatment rendered at a private hospital on May 6, 2015 is denied. Payment or reimbursement for treatment rendered at a private hospital on June 8, 2015 is denied. FINDINGS OF FACT 1. The Veteran served on active duty from February 2009 to February 2013. 2. The medical services provided at a private hospital in Jacksonville, Florida on May 4 and 6, 2015 and June 8, 2015 were not rendered in a medical emergency of such a nature that delay would have been hazardous to life or health, or in a situation in which federal facilities were not feasibly available and an attempt to use them beforehand would not have been reasonable. CONCLUSIONS OF LAW 1. The criteria for entitlement to reimbursement of medical expenses incurred at a private hospital in Jacksonville, Florida on May 4, 2015 have not been met. 38 U.S.C. §§ 1703, 1725, 1728 (2012); 38 C.F.R. §§ 17.120-17.121 (2018). 2. The criteria for entitlement to reimbursement of medical expenses incurred at a private hospital in Jacksonville, Florida on May 6, 2015 have not been met. 38 U.S.C. §§ 1703, 1725, 1728 (2012); 38 C.F.R. §§ 17.120-17.121 (2018). 3. The criteria for entitlement to reimbursement of medical expenses incurred at a private hospital in Jacksonville, Florida on June 8, 2015 have not been met. 38 U.S.C. §§ 1703, 1725, 1728 (2012); 38 C.F.R. §§ 17.120-17.121 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA is authorized to reimburse veterans for emergency medical treatment under 38 U.S.C. § 1725 and 38 U.S.C. § 1728. To be eligible for reimbursement under 38 U.S.C. § 1728, the treatment must have been for associated with a service-connected disability or the veteran must be a participant in a vocational rehabilitation program. 38 U.S.C. § 1728(a); 38 C.F.R. § 17.120. The Veteran did not meet the criteria for payment of authorized or unauthorized medical expenses of 38 U.S.C. § 1728; thus, his claim for payment must be considered under criteria for determining entitlement under the Veterans Millennium Healthcare and Benefits Act (Act), 38 U.S.C. § 1725; 38 C.F.R. §§ 17.1000-17.1008. The Veteran is in receipt of service-connected benefits for asthma, right and left elbow disabilities, right and left knee disabilities, right and left ankle disabilities, right and left shoulder disabilities, cervical spine disability, lumbar spine disability, tinnitus, dyssomnia, disabilities of all four fingers and thumbs of the right and left hand, and residual scars of the bilateral arms. His combined disability rating is 80 percent. For coverage under 38 U.S.C. § 1725, a veteran must be an individual who is an active Department health-care participant who was personally liable for emergency treatment furnished the veteran in a non-Department facility. In claims involving payment or reimbursement by VA for medical expenses incurred as a result of treatment at a private facility, there are three possible theories of entitlement: (1) the private medical services were authorized by VA; (2) the veteran is entitled to payment or reimbursement for services not previously authorized that are related to or aggravated a service-connected disability; or (3) the veteran is entitled to payment or reimbursement for services not previously authorized relating to a nonservice-connected disability. See 38 U.S.C. §§ 1703(a), 1725, 1728(a). Generally, the admission of a veteran to a non-VA hospital at VA expense must be authorized in advance. See 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); see 38 U.S.C. § 1703 (a); 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, whether formal or informal, by telephone, telegraph or other communication, made by the veteran or by others in his or her behalf, is made to VA within 72 hours after the hour of admission. 38 C.F.R. § 17.54. A veteran is an active Department health-care participant if the veteran is enrolled in the health care system established under § 1705(a) and received care within the 24-month period preceding the furnishing of such emergency treatment. 38 U.S.C. § 1725 (b)(2). A veteran is personally liable for emergency treatment furnished the veteran in a non-Department facility if the veteran is financially liable to the provider of emergency treatment for that treatment; has no entitlement to care or services under a health-plan contract (determined, in the case of a health-plan contract as defined in § (f)(2)(B) or (f)(2)(C), without regard to any requirement or limitation relating to eligibility for care or services from any department or agency of the United States); has no other contractual or legal recourse against a third party that would, in whole, extinguish such liability to the provider; and is not eligible for reimbursement for medical care or services under § 1728. For purposes of this section, “emergency treatment” means: medical care or services furnished, in the judgment of the Secretary, when Department or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable; when such care or services are rendered in a medical emergency of such nature that a prudent layperson reasonably expects that delay in seeking immediate medical attention would be hazardous to life or health; and until such time as the veteran can be transferred safely to a Department facility or other Federal facility and such facility is capable of accepting such transfer; or such time as a Department facility or other Federal facility accepts such transfer if at the time the veteran could have been transferred safely to a Department facility or other Federal facility, no Department facility or other Federal facility agreed to accept such transfer; and the non-Department facility in which such medical care or services was furnished made and documented reasonable attempts to transfer the veteran to a Department facility or other Federal facility. 38 U.S.C. § 1725(f)(1). The Veteran seeks payment or reimbursement of medical expenses incurred at a private hospital in Jacksonville, Florida on three separate occasions: May 4 and 6, 2015 and June 8, 2015. Each claim was denied on the basis that the need for treatment was not emergent. On May 4, 2015, the Veteran presented to the emergency room (ER) with complaints of lightheadedness and nausea for a couple of days and lasting about two minutes at a time. He denied headaches, chest pain, shortness of breath, and palpitations, as well as weakness, numbness, pain, and swelling in the legs. He was alert and oriented and in no acute distress. The differential diagnoses were electrolyte imbalance, thyroid disorder, PE (pulmonary embolism), arrhythmia, and dehydration; the final diagnosis was dizziness of uncertain cause. The private treatment notes states that the complaints were considered an emergency condition due to dysfunction of bodily organ or part. The treating physician, Dr. JW, opined in August 2015 that the Veteran’s lightheadedness and near-syncopal episodes were considered emergency-related and immediate treatment was in the best interest of the patient. On May 6, 2015, the Veteran returned to the ER with complaints of dizziness and disorientation for four days. He was in no acute distress, and the physical examination was normal. The differential diagnosis was labyrinthitis. The treatment notes states that the condition was considered emergent due to acute onset of symptoms. A letter from Dr. JS, the treating physician, indicated that he felt the Veteran’s situation was emergent. On June 8, 2015, the Veteran presented with nausea, stating that the symptoms had their onset five weeks earlier and were constant. He was in no acute distress. The differential diagnoses were nausea, gastritis, dehydration, electrolyte abnormality, viral syndrome, and anxiety. Additionally, his blood pressure was elevated during the visit. A head CT showed no abnormalities. He described that his father had recently been diagnosed with cancer of the pancreas, liver, and lung, and the physician indicated that no evidence of cancer was found for the Veteran. The diagnosis was nausea, and the Veteran was discharged with referrals for GI (nausea), ENT (dizziness), and neurology (dizziness). Treatment notes states that the complaints were considered an emergency condition due to dysfunction of bodily organ or part. A note from Dr. JK regarding the June 8, 2015 visit stated that the Veteran was evaluated for symptoms that can be present in patients with brain tumors, severe anemia, kidney failure, diabetes, hypertension, and a host of other life-threatening problems. Dr. JK also indicated that a layperson would not have been able to discern whether a serious problem was present. A common internet map search reveals that the private hospital is approximately 12 to 15 miles from the Veteran’s home address, whereas the nearest VA hospitals in Lake City, Florida and Gainesville, Florida are approximately 70 to 80 miles away, requiring a drive of at least 1-1/2 hours. The Veteran asserts he was unable to travel that distance given his symptoms. Each of the Veteran’s three private ER visits occurred on a weekday. The May 4, 2015 and June 8, 2015 treatment notes reflect that he was seen between 11 am and 12 pm. There are multiple VA clinics, which are open weekdays until 4 pm, within 20 to 30 miles of the Veteran’s home. Thus, these facilities were open to the Veteran for these two visits. The May 6, 2015 visit occurred after 6pm. Even so, with regard to the Veteran’s symptoms, they had been present for two days upon the Veteran’s first visit, four days upon the second visit, and weeks upon the third visit. Thus, he had ample time to contact VA to make an appointment at a clinic or to obtain authorization for private care. In fact, the Veteran contacted VA on two occasions to make an appointment with his primary care physician (PCP), but did not do so. VA treatment notes reflect that he called to make a primary care appointment on the morning of May 6, 2015, but the record does not reflect that an appointment was made. He called again on June 8, 2015 and was advised that his PCP was not available that week, but that he could see the PCP on duty or visit and ER, preferably in Gainesville Florida or Lake City, Florida. Notably, telephone consultation notes state that the Veteran’s nausea had been present for two days rather than for five weeks. Nevertheless, he then chose the ER because he “needed a CT” and chose the private ER rather than a VA Medical Center. It is unclear why he believed he needed a CT. Regardless, even though he spoke with VA personnel prior to the May 6, 2015 and June 8, 2015 ER visits, the conversations did not result in authorization for non-VA care. In each instance, the private medical records stated that the treatment occurred in an emergency. However, the rationale for this assessment was the sudden onset of symptoms or that the symptoms involved dysfunction of bodily organ or part. Neither of these rationales addresses whether delay in treatment of the symptoms would have been hazardous to the Veteran’s health. Further, the statement of Dr. JS as to the emergency nature of the Veteran’s treatment lacks a rationale. The statement of Dr. JW indicating that immediate treatment was in the best interest of the Veteran, and of Dr. JK that the Veteran’s symptoms could have indicated any number of life-threatening disorders do not consider the Veteran’s history of having symptoms for days or weeks before the ER visit. Moreover, if, as Dr. JK stated, a layperson such as the Veteran would not have been able to determine if his symptoms were due to a life-threatening disorder or a non-serious problem, the Board finds the decision to wait weeks to seek medical treatment for his symptoms on June 8, 2015 improbable. As such, the Board determines that the medical services the Veteran received on May 4, 2015, May 6, 2015, and June 8, 2015 were not rendered in a medical emergency of such a nature that delay would have been hazardous to life or health, or in a situation in which federal facilities were not feasibly available and an attempt to use them beforehand would not have been reasonable. Therefore, the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not   required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel