Citation Nr: 18156724
Decision Date: 12/10/18	Archive Date: 12/10/18

DOCKET NO. 16-35 303A
DATE:	December 10, 2018
ORDER
Reimbursement or payment for medical expenses incurred due to non-VA medical care, from January 6, 2016, through January 7, 2016, at Ocala Regional Medical Center (ORMC), is granted.
FINDING OF FACT
The evidence is at least in relative equipoise as to whether the non-VA medical care at ORMC from January 6, 2016, through January 7, 2016, was for a condition of such nature that a prudent layperson would have reasonably expected that delay in obtaining the treatment would have been hazardous to life or health; and an attempt to use the nearest VA medical facility at that time would not have been considered reasonable by a prudent layperson. 
CONCLUSION OF LAW
Resolving all reasonable doubts in the Veteran’s favor, the criteria for establishing entitlement to reimbursement or payment of non-VA medical expenses, incurred from January 6, 2016, through January 7, 2016, at ORMC, are met.  38 U.S.C. § 1725 (2012); 38 C.F.R. § 17.1002 (2017). 

REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from June 1969 to June 1972. 
This appeal to the Board of Veterans’ Appeals (Board) is from March and April 2016 decisions by the Department of Veterans Affairs (VA) North Florida/South Georgia Veterans Health System. 
In his July 2016 substantive appeal (via VA Form 9), the Veteran requested a Board hearing.  While no hearing was afforded, given that his appeal is being granted herein, there is no prejudice to the Veteran. 
Entitlement to reimbursement or payment for medical expenses incurred due to non-VA medical care, from January 6, 2016, through January 7, 2016, at ORMC
Pertinent Law and Regulations
When VA facilities or other government facilities are not capable of furnishing economical hospital care or medical services because of geographic inaccessibility or because they are not capable of furnishing care or services required, VA may contract with non-VA facilities to provide the appropriate care.  38 U.S.C. § 1703 (2012); 38 C.F.R. § 17.52 (2017).
Further, in general, if VA is to provide payment or reimbursement of medical expenses incurred due to a Veteran’s care at a non-VA hospital, the care must be authorized in advance.  See 38 U.S.C. § 1703; 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 is made to VA within 72 hours after the hour of admission.  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).  
When, however, a Veteran receives treatment at a non-VA facility without prior authorization, two statutes allow for payment or reimbursement for the medical expenses incurred for that treatment; specifically, 38 U.S.C. §§ 1725 and 1728 (2012).  Application of either statute is generally dependent on whether the Veteran has an adjudicated service-connected disability.  
In the present case, the Veteran has not established service connection for any disability.  Therefore, 38 U.S.C. § 1725 applies, as set forth below. 
Under 38 U.S.C. § 1725, payment or reimbursement for emergency services for non-service-connected conditions in non-VA facilities may also be authorized.  38 C.F.R. §§ 17.1000-03.  To be eligible for reimbursement under this authority, all of the 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 
As an initial matter, the record does not reflect, and the Veteran has not reported, that the non-VA medical care at ORMC from January 6, 2016, through January 7, 2016, was authorized in advance.  See 38 U.S.C. § 1703 (2012); 38 C.F.R. § 17.52 (2017).  Therefore, 38 U.S.C. § 1725 applies. 
Further, 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.  In this regard, the VAMC has already determined that the claim for reimbursement was timely filed by the Veteran, he is, at least in part, financially liable to the private providers for the treatment, he 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, he is not eligible for reimbursement under 38 U.S.C. 1728 for the emergency treatment provided, and the services in question were provided in a hospital emergency department.  See 38 C.F.R. §§ 17.1002(a)-(h). 
Therefore, the remaining issues are whether the medical events at ORMC from January 6, 2016, through January 7, 2016, constituted an emergency; and whether a VA facility was feasibly available.  
When considering this evidence, the Board resolves all reasonable doubt in the Veteran’s favor and finds that reimbursement or payment of these medical expenses incurred from January 6, 2016, through January 7, 2016, is warranted.  
The totality of the evidence of record suggests that, on January 6, 2016, a prudent layperson in the Veteran’s position would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to his health.  In this regard, the Veteran has competently reported that, on January 6, 2016, he was experiencing “lightheadedness, dizziness, and headache” accompanied by “dry mouth with slight metallic taste and mild unsteady gait,” see September 2018 Appellant Brief, which he believed were “. . . symptoms . . . of a heart attack or stroke/cerebral hemorrhage,” see July 2016 Substantive Appeal.  Clinical evidence of record supports the Veteran’s reports, as a January 6, 2016 emergency treatment note from ORMC indicates that he reported “lightheadedness and dizziness” with ‘dry mouth with a slight metallic taste.’  In a January 7, 2016 discharge note, the emergency treating physician wrote that the Veteran was “having heart palpitations and lightheadedness, which resolved in the emergency department.”  The Board finds that the totality of the evidence 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 the Veteran’s favor and finds that a prudent layperson in his 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 January 6, 2016, 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.  In this regard, the nearest VA medical center located in Gainesville, Florida, was more than fifty miles away from the Veteran’s residence, and the Veteran has competently reported that given his medical condition at that time, he “didn’t think [he] could physically drive [himself] to this location.”  See July 2016 Substantive Appeal.  The Veteran accordingly sought emergency care from ORMC, which was approximately eighteen miles away from his residence.  Therefore, 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.  
(Continued on the next page)




Accordingly, the Board concludes that payment or reimbursement of the Veteran’s non-VA medical treatments from January 6, 2016, to January 7, 2016, at ORMC, is warranted.  His appeal is granted. 

 
MARJORIE A. AUER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. Kim, Associate Counsel