Citation Nr: 18155134 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-26 996 DATE: December 4, 2018 ORDER Payment or reimbursement of unauthorized medical expenses incurred at a private hospital in Lincoln, Nebraska, on March 24, 2015, is denied. FINDINGS OF FACT 1. The Veteran served on active duty from November 1964 to November 1967. 2. The medical services provided at a private hospital in Lincoln, Nebraska, on March 24, 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. CONCLUSION OF LAW The criteria for entitlement to reimbursement of unauthorized medical expenses incurred at a private hospital in Lincoln, Nebraska, on March 24, 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 CONCLUSION The applicable statute and regulations direct that in the absence of prior appropriate authorization under 38 C.F.R. §§ 17.53 and 17.54, payment or reimbursement may be made for any disability for any disability of a veteran who has a total disability, permanent in nature, resulting from a service-connected disability if the services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health; and, no VA or other Federal facilities were feasibly available and an attempt to use them beforehand would not have been reasonable. 38 U.S.C. § 1728; 38 C.F.R. § 17.120. If any one of the foregoing requirements is lacking, the benefit sought may not be granted. See Zimick v. West, 11 Vet. App. 45, 49 (1998); Malone v. Gober, 10 Vet. App. 539, 547 (1997); see also Melson v. Derwinski, 1 Vet. App. 334, 337 (the use of the conjunctive “and” in a statutory provision meant that all the conditions listed in the provision must be met). The Veteran has been in receipt of a total disability rating due to individual unemployability since May 28, 2004. Thus, he is eligible for payment or reimbursement of unauthorized private medical expenses under 38 U.S.C. § 1728 if they were incurred in an emergency and VA facilities were not feasibly available. With regard to the second criterion, “emergency treatment” requires a medical emergency of such nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. 38 C.F.R. § 17.120(b); see also 38 U.S.C. § 1728(c) (providing that the term “emergency treatment” in this section has the same meaning as given to this term in § 1725(f)(1) of the statute). This standard is met by 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. 38 C.F.R. § 17.120(b). On March 24, 2015, the Veteran was seen in the emergency department (ER) of a private hospital for chronic pain in the right hip and knee. Time of service was 16:23. Treatment notes reflect that he was in mild to moderate distress with exquisite pain to palpation of the right hip. Review of symptoms was otherwise negative. The physician noted nothing acute or emergent. The Veteran recalled having visited the ER at the same hospital a couple of months prior for the same symptoms and that he was given an injection at that time. The ER physician noted a prior visit in August 2014. An intramuscular injection of pain medication was administered. VA treatment notes show that the Veteran was regularly seen at the VA clinic in Lincoln, which had closed at 4:00 pm (16:00) on March 24, 2015. He reported to the ER physician that he had had difficulty getting an appointment with VA via telephone but had scheduled one for the next day, March 25, 2015, at 8:30 am. However, VA treatment notes reflect that he was seen for physical therapy a day earlier, on March 23, 2015, and had complained of worsening pain in the right hip at that time, but there is no indication that he attempted to receive treatment for his pain at that time or to make an appointment at that time or to obtain pain medication. The PT appointment occurred at 10:00 am. Further, VA messaging notes show that the Veteran first contacted VA for an appointment at 12:04 pm on March 24, 2015, at which time he advised that if he could not get an appointment soon, he would need to go the private hospital for treatment. A message notifying him that he had a scheduled appointment on March 25, 2015 was sent at 12:51 pm. In summary, the Veteran had complaints of pain at a PT appointment on March 23, 2015, and that pain had worsened sufficiently in the next 24 hours for him to decide that he would visit the ER if he could not get a VA appointment soon enough. Nevertheless, he then waited an additional three hours to go to the private ER. A common internet map search reveals that the Omaha VA Medical Center, which operates a 24-hour ER, is located approximately one hour away from Lincoln, Nebraska. Thus, he had ample time between his contact with VA regarding his appointment and the trip to the private ER to drive to the VAMC in Omaha. Moreover, while the Board does not question the Veteran’s perception of his pain and notes that he was in mild to moderate distress when he visited the ER, his heart rate, respiration, and other systems were normal. Consequently, there is no indication that the pain was a hazard to his life or health such that VA facilities one hour away were not feasibly available to him or that an attempt to use them beforehand would not have been reasonable at the time given the distance to the VA facility. Accordingly, the criteria for payment or reimbursement of medical expenses incurred on March 24, 2015, are not met, and 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