Citation Nr: 18155397 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-30 393 DATE: December 4, 2018 ORDER Payment or reimbursement for unauthorized medical expenses incurred at Shands Jacksonville Medical Center (SJMC) on May 31, 2015, is denied. FINDING OF FACT VA facilities were feasibly available to the Veteran on May 31, 2015, when he was stable for transfer to SJMC; he additionally failed to inform the initial treatment facility that he was a Veteran such that the initial treatment facility could attempt to transfer to a VA medical facility instead of SJMC. CONCLUSION OF LAW The criteria for payment or reimbursement for unauthorized medical expenses incurred at SJMC on May 31, 2015, are not met. 38 U.S.C. §§ 1703, 1725, 1728, 5107; 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120, 17.121, 17.130, 17.1002. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from October 1975 to September 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 letter of determination a Department of Veterans Affairs (VA) Medical Center. The Veteran initially sought medical treatment at Halifax Medical Center on May 31, 2015, for rectal bleeding and obstruction secondary to a foreign object in his anus. This episode of emergency room treatment is not the subject of this appeal. Rather, while in the emergency room at Halifax Medical Center, it was determined that the Veteran would be surgery to extract the foreign object; unfortunately, Halifax Medical Center did not have colorectal coverage that day and therefore it was determined that the Veteran needed to be transferred to a different hospital in order to obtain the necessary surgical procedure. Halifax Medical Center records indicate that when the Veteran was told he needed to be transferred, the Veteran stated a preference for a transfer to Jacksonville. Later, the Veteran agreed to the transfer. It does not appear that the Veteran at any time informed the Halifax Medical Center staff that he was a Veteran and that he needed to be transferred to a VA Medical Center if feasible. Eventually, the Veteran was transported by ambulance on a stretcher, after receiving pain medication, to SJMC safely, where the surgical procedure to remove the foreign object was performed. He was discharged the same day. The Veteran’s ambulance trip was to SJMC was 87 miles and approximately an hour drive-time; the Gainesville VA Medical Center was 107 miles and approximately the same drive-time from Halifax Medical Center. On appeal, in his July 2015 notice of disagreement, the Veteran indicate that, after receipt of pain killers at Halifax, the doctors at that facility felt that he required surgery and they had him transported to SJMC by ambulance. He noted that the doctors would not have taken this action if it were not an emergency. He further stated that he was “unconscious from the mediation [sic] while [he] was in the ambulance for the entire trip and awoke only after the surgery had been completed.” Finally, in the January 2018 informal hearing presentation, the Veteran’s representative indicated that the Veteran estimated that it would have been a 2-hour drive to the nearest VA Medical Center. The Veteran’s representative additionally reiterated the Veteran’s contentions that he was not awake during transport to SJMC and that he had been given pain medications prior to transfer to that facility. As an initial matter, the surgical treatment at SJMC was not authorized by VA prior to the episode of treatment, nor was such surgical treatment for a service-connected disability. Consequently, payment or reimbursement under the provisions of 38 U.S.C. §§ 1703 and 1728 are inapplicable in this case. The Veteran’s sole recourse for payment or reimbursement in this case is under 38 U.S.C. § 1725. Without addressing any other aspect of the claim in this case, the Board finds that VA facilities were feasibly available in this case and therefore the claim must be denied. The existence of a VA facility does not in and of itself mean that the VA facility was feasibly available. Cotton v. Brown, 7 Vet. App 325, 327 (1995). The fact that a VA medical center was located in the same city as the private facility does not provide an adequate basis for the Board’s findings that a VA facility was “available”; rather, the determination of whether a VA facility was “feasibly available” must be made after consideration of such factors as the urgent nature of the veteran’s medical condition and the length of any delay that would have been required to obtain treatment from a VA facility. Id. at 327-28. Respecting the relative distance of the travel involved, the Board may take notice of facts, as compared to evidence, which are not subject to interpretation. See Yeoman v. West, 140 F.3d 1443 (Fed. Cir. 1998); Dedicatoria v. Brown, 8 Vet. App. 441 (1995). Other factors to consider include whether a prudent layperson would consider an attempt to use a VA facility beforehand or obtain prior VA authorization for the services required would have been reasonable, sound, wise, or practicable, or whether treatment had been or would have been refused. 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. 38 C.F.R. §§ 17.120(c), 17.1002(c). Regardless, no reimbursement or payment of services will be made when such treatment was procured through private sources in preference to available Government facilities. 38 C.F.R. § 17.130. Moreover, the Board notes that, generally, VA will not approve claims for payment or reimbursement of the costs of emergency treatment not previously authorized for any period beyond the date on which the medical emergency ended. For this purpose, VA considers that an emergency ends when the designated VA clinician at the VA facility has determined that, based on sound medical judgment, the veteran who received emergency treatment (1) could have been transferred from the non-VA facility to a VA medical center (or other Federal facility that VA has an agreement with to furnish health care services for veterans) for continuation of treatment, or (2) could have reported to a VA medical center (or other Federal facility that VA has an agreement with to furnish health care services for veterans) for continuation of treatment. 38 C.F.R. § 17.121(a). Additionally, if a stabilized veteran who requires continued non-emergency treatment refuses to be transferred to an available VA facility (or other Federal facility that VA has an agreement with to furnish health care services for veterans), VA will make payment or reimbursement only for the expenses related to the initial evaluation and the emergency treatment furnished to the veteran up to the point of refusal of transfer by the veteran. 38 C.F.R. § 17.121(c). In this case, it is clear that the Veteran necessitated transfer from Halifax Medical Center to a different medical facility in order to perform the necessary surgical procedure. Thus, the Board finds that the Veteran was determined by medical professional in this case to be stable enough for transportation to a different medical facility, as demonstrated by the Veteran’s actual transfer from Halifax Medical Center to SJMC by ambulance. Initially, any contention by the Veteran that the nearest VA Medical Center from Halifax Medical Center would have been a two-hour drive is inaccurate. It is clear that the mileage and drive-time for the ambulance from Halifax Medical Center to either SJMC or the Gainesville VA Medical Center would have been comparable. Additionally, although the Board acknowledges the Veteran’s statements that he was unconscious from the pain medications during his transfer by ambulance and that he did not wake up until after completion of the surgery, the Board finds that the Veteran’s statements that he did not approve the transfer or otherwise indicate a preference at a facility to be transferred to be not credible in light of the evidence of record in the Halifax Medical Center Records. Those records clearly document that the Veteran expressed a preference for transfer to Jacksonville if he had to be transferred; additionally, he specifically agreed to be transferred to SJMC. While the Board does not doubt that he was given pain medication and that he may have been unconscious in order to transfer him from Halifax Medical Center to SJMC, any contention that he was not involved in the decision to be transferred to SJMC or otherwise was unaware of the need for transfer to a different facility for surgery is not credible. Rather, it appears that such discussion regarding transfer and which facility he would be transferred to was had with the Veteran. It was incumbent of the Veteran at that time, during that conversation, to inform the medical staff that he was a Veteran and that he needed to be transferred, if possible, to a VA Medical Center. The Veteran did not inform the medical staff of this need to be transferred to a VA medical facility. Consequently, such omission by the Veteran is tantamount to a refusal to transfer to a VA medical facility for continuation of medical treatment and is a demonstrable preference of private medical care to that from VA. Payment or reimbursement under those conditions cannot be authorized. In short, although the Veteran’s condition was an “emergency” and given that the Veteran had to be transferred for continued medical treatment and surgery, the and Gainesville VA Medical Center was a comparable distance and drive-time from the initial treatment facility in this case as SJMC; VA facilities were therefore feasibly available to the Veteran in this case. Additionally, the Veteran had a duty to inform the medical staff that he needed to be transferred to a VA medical facility when that topic was discussed with him. As the Veteran did not so inform the staff when he was consulted about, and agreed to and authorized the transfer to SJMC, the Veteran demonstrated a preference of private medical care to that of VA and essentially refused to transfer to VA for continued medical treatment. Under such circumstances, the Board must deny the Veteran’s claim for payment or reimbursement of medical expenses incurred at SJMC on May 31, 2015, based on the evidence of record at this time. See 38 U.S.C. § 1725; 38 C.F.R. §§ 17.121, 17.130. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Peters, Counsel