Citation Nr: 18154424
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 16-19 778A
DATE:	November 29, 2018
ORDER
Payment or reimbursement of costs of the private ambulance services provided by American Medical Response (AMR), on September 26, 2014, is granted.
FINDING OF FACT
The evidence is at least in relative equipoise as to whether payment or reimbursement would have been authorized under 38 U.S.C. § 1725 (2017) for the non-VA medical treatment on September 26, 2014. 
CONCLUSION OF LAW
The criteria for entitlement to payment or reimbursement of costs of the private ambulance services provided by AMR, on September 26, 2014, are met.  38 U.S.C. §§ 1703, 1725, (2012); 38 C.F.R. §§ 17.1000-17.1008 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from January 1969 to October 1971.  
This appeal to the Board of Veterans’ Appeals (Board) is from a February 2015 decision by the Department of Veterans Affairs (VA) Veterans Integrated Healthcare Service Network (VISN) Payment Center in Portland, Oregon.  
Entitlement to payment or reimbursement of costs of the private ambulance services provided by AMR on September 26, 2014
Pertinent Law and Regulations 
Payment or reimbursement for emergency ambulance services pursuant to 38 U.S.C. § 1725 may be made for transporting a veteran to a facility if the conditions under 38 C.F.R. § 17.1003 are met.  
In the present case, the Veteran has not established service connection for any disability.  Therefore, 38 U.S.C. § 1725 applies.  See 38 U.S.C. § 1725 (2012). 
As relevant, payment or reimbursement for private ambulance service is warranted if payment or reimbursement is authorized under 38 U.S.C. § 1725 for emergency treatment from a private medical facility.  See 38 C.F.R. § 17.1003(a)-(d).
To be eligible for reimbursement under this authority, all 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 
The Veteran maintains that payment or reimbursement associated with private emergency ambulance services provided by AMR, incurred on September 26, 2014, is warranted.  
Payment or reimbursement for private ambulance services is warranted if payment or reimbursement is authorized under 38 U.S.C. § 1725 for emergency treatment from a private medical facility.  See 38 C.F.R. § 17.1003(a)-(d).
The record reflects that, on September 26, 2014, the Veteran was transported to a nearby private medical facility via ambulance services provided by AMR.  He was treated for “transient ischemic attack” and was discharged later that day.  See September 26, 2014 private emergency care note. 
It also appears that 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.  See 38 C.F.R. §§ 17.1002(a)-(h). 
The remaining issues are whether the medical events at the private medical facility, on September 26, 2014, constituted an emergency; and whether a VA facility was feasibly available to determine whether payment or reimbursement would have been authorized under 38 U.S.C. § 1725 for emergency treatment.
A September 26, 2014 private emergency note documents that, earlier that day, the Veteran “fell in the living room while walking” due to “left sided weakness in leg and arm.”  He was diagnosed with and treated for stroke after he was transported to a nearby private emergency room via ambulance.  The Veteran was discharged later that day.  See September 26, 2014 discharge summary.  The clinical evidence of record reasonably suggests an acute, hazardous medical condition to a layperson without medical expertise or knowledge.  Under these circumstances, the Board resolves all reasonable doubt in his 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 his health.
The Board also finds that, on September 26, 2014, 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.  On that day, the Veteran was transported via ambulance to a nearby private medical facility, merely nine minutes away from his residence.  It also appears that the nearest VA medical facility (VA medical center in Portland, Oregon) was not equipped with an emergency department from review of the VA facilities website for VA Portland Health Care System, given that the website instructs patients to contact “911 or go to the nearest emergency room or hospital” in case of a medical emergency.   Under these circumstances, the Board resolves all reasonable doubts in the Veteran’s favor and finds that a VA medical facility with an emergency department equipped to provide the care needed was not feasibly available at the time of the September 26, 2014 medical event. 
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Accordingly, the Board finds that payment or reimbursement would have been authorized under 38 U.S.C. § 1725 for the medical expenses associated with the Veteran’s September 26, 2014 non-VA medical care.  As such, payment or reimbursement for private ambulance services provided by AMR is warranted.  See 38 C.F.R. § 17.1003(a)-(d).  His appeal is granted. 
 
MARJORIE A. AUER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. Kim, Associate Counsel