Citation Nr: 18156154
Decision Date: 12/07/18	Archive Date: 12/07/18

DOCKET NO. 16-15 461A
DATE:	December 7, 2018
ORDER
Entitlement to payment or reimbursement for the cost of non-VA medical care provided on March 13, 2015, at Winter Haven Hospital in Winter Haven, Florida is denied.
FINDING OF FACT
The non-VA medical care provided was not authorized by VA, there was no indication that it was provided in a medical emergency, and VA facilities were feasibly available to provide the necessary treatment.
CONCLUSION OF LAW
The criteria for payment or reimbursement for unauthorized medical expenses incurred at Winter Haven Hospital on March 13, 2015, are not met.  38 U.S.C. §§ 1703, 1725, 1728 (2012); 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120, 17.121, 17.1002 (2018).

REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active air service from November 1972 to June 1974.  
This case comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 administrative decision issued by the Department of Veterans Affairs (VA) Medical Center in Tampa, Florida.
The Veteran requested a personal hearing before a member of the Board in his April 2016 Substantive Appeal.  Although a hearing was scheduled for September 14, 2018, the Veteran cancelled his request for a hearing in a statement received by VA in September 2018 and his hearing request is deemed withdrawn.
Medical reimbursement 
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) (2012); 38 C.F.R. § 17.52 (2018).
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 (2018); Malone v. Gober, 10 Vet. App. 539 (1997).  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 (2018).  
The Veteran does not contend, and the evidence does not otherwise suggest, that the Veteran’s treatment on March 13, 2015, was authorized in advance. 
Nevertheless, VA may reimburse Veterans for unauthorized medical expenses incurred in non-VA facilities when:
(a) Care or services not previously authorized were rendered to a Veteran in need of such care or services: (1) For an adjudicated service-connected disability; (2) For nonservice-connected disabilities associated with and held to be aggravating an adjudicated service-connected disability; (3) For any disability of a Veteran who has a total disability permanent in nature resulting from a service-connected disability; (4) For any illness, injury, or dental condition in the case of a Veteran who is participating in a rehabilitation program under 38 U.S.C. Chapter 31 and who is medically determined to be in need of hospital care or medical services for any of the reasons enumerated in § 17.48(j); and
(b) Care and services not previously authorized were rendered in a medical emergency of such nature that delay would have been hazardous to life or health; and
(c) VA or other federal facilities were not feasibly available, and an attempt to use them beforehand or obtain prior VA authorization for the services required would not have been reasonable, sound, wise, or practicable, or treatment had been or would have been refused.
38 U.S.C. § 1728 (a) (2012); 38 C.F.R. § 17.120 (2018).
All three statutory requirements must be met before the reimbursement may be authorized.  Zimick v. West, 11 Vet. App. 45 (1998); Hayes v. Brown, 6 Vet. App. 66 (1993).  In this case, the Veteran is not service-connected for acute bronchitis, his acute bronchitis has not been associated with and held to be aggravating an adjudicated service-connected disability, he does not have a total disability permanent in nature resulting from a service-connected disability, nor is he a participant in an eligible rehabilitation program.  Thus, payment or reimbursement of medical expenses pursuant to 38 U.S.C. § 1728 (a) must be denied.
The Board will next consider whether payment or reimbursement for emergency services for non-service-connected conditions in non-VA facilities is authorized under 38 U.S.C. § 1725 and 38 C.F.R. §§ 17.1000-1008.  To be eligible for reimbursement under those statutory and regulatory provisions, the Veteran must satisfy all of the following conditions:
(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 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, 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 (38 U.S.C. § 1728 authorizes VA payment or reimbursement for emergency treatment to a limited group of Veterans, primarily those who receive emergency treatment for a service-connected disability). 
The criteria under 38 C.F.R. § 17.1002 are conjunctive, not disjunctive.  Therefore, all criteria must be met.  Melson v. Derwinski, 1 Vet. App. 334 (1991).  The Board finds that the Veteran’s claim for reimbursement fails because, first and foremost, the medical care provided was not provided for a medical emergency as required by law.  However, even if the care was provided in the case of a medical emergency, a VA facility was feasibly available for treatment.
In reaching that decision, the Board acknowledges the Veteran’s contentions.  Specifically, that he woke up at night with chills, a fever, and vomiting; that he previously had cancer, was HIV positive, and that he was told to not chance an hour and a half drive if he ever got sick; and that his local hospital was about 2 miles away, while the VA clinic in Lakeland, Florida was about 20 miles away.  Further, the Veteran reported he was too sick to make the drive to the VA facility and the records do show that he was transported to the private hospital by family.
However, there is no indication from the record that the medical care in question was provided in the case of a medical emergency and there was nothing which prevented him from seeking the medical care provided from VA.  In that regard, the medical treatment record from the Veteran’s emergency room visit noted that the Veteran’s symptoms began a couple of weeks prior to his seeking medical attention.  Moreover, the Veteran did not appear to be in any severe pain upon arrival and actually rated his pain as 0 out of 10.  As such, it does not appear that the Veteran reasonably expected the absence of immediate medical attention to result in placing his health in serious jeopardy.  
Further, the record indicates that a VA facility in Tampa could have provided the necessary medical services.  In that regard, the medical treatment record shows that the Veteran initially went to the VA facility in Tampa to seek treatment, but left because he felt that it was too crowded.  Thus, the Board finds that a VA facility was feasibly available for treatment.
Additionally, the Board lacks the discretion to award medical care benefits on an equitable basis and is instead bound to observe the limits on its authority set forth by VA statutes and regulations.  38 U.S.C. §§ 503, 7104 (2012); Harvey v. Brown, 6 Vet. App. 416 (1994).  Those governing provisions direct that where, as here, the preponderance of the evidence is against a claim for payment or reimbursement of unauthorized medical expenses, that claim must be denied.  38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 
 
Kristin Haddock
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	I. Cannaday, Associate Counsel