Citation Nr: 18156848 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 13-22 638 DATE: December 11, 2018 ORDER Entitlement to payment or reimbursement of unauthorized medical expenses incurred at Lakeland Regional Medical Center (LRMC) on January 25, 2013, is denied. FINDING OF FACT On January 25, 2013, the Veteran’s condition was not 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. CONCLUSION OF LAW The criteria for payment or reimbursement to unauthorized medical expenses incurred at LRMC on January 25, 2013, are not met. 38 U.S.C. §§ 1703, 1728, 5107; 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120, 17.121. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from August 1970 to July 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 letter of determination by a Department of Veterans Affairs (VA) Medical Center. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in November 2016. On January 24, 2013, the Veteran presented at a VA walk-in clinic for spider bite on his left forearm and leg, which had been present for 3 or 4 days. He had complaints of mild itching. He was seen, prescribed Heritage, Keflex and Medrol, and was told to report to urgent care or the nearest emergency room if any of his symptoms “worsen, he becomes short of breath, or the rash/irritation spreads.” This case stems from the Veteran’s treatment at LRMC on January 25, 2013, for spider bites/rashes on his buttocks and left thigh; he also reported having rashes on his left wrist 5 or 6 days prior, which had resolved. On admission, the Veteran was alert and in no acute distress. He reported a rash on his buttocks and to the anterior and medial left thigh. These were noted as vesicular lesions and areas of erythema that were herpetic in appearance. There was no obvious abscess, cellulitis, or lymphangitis. Generally, the Veteran’s cardiovascular, respiratory, gastrointestinal, musculoskeletal, and neurological systems were normal at that time. He was diagnosed with shingles (herpes zoster) at that time, given two prescriptions, and was discharged to his home. Later that day—approximately 2 hours after discharge from LRMC—the Veteran was seen in the VA walk-in clinic, where he reported that he had gone to LRMC because his rash had worsened, noting the development of an additional lesion in his lower legs and back. He gave the medical records from LRMC, to include the prescriptions, to the VA staff at that time; he requested that VA fill his prescriptions. The Board reflects that the Agency of Original Jurisdiction (AOJ) has denied this claim on the basis that there was no emergent condition. On appeal, the Veteran stated in his notice of disagreement that he went to the emergency room because his rashes had worsened and that treatment at the Tampa VA Medical Center was not offered to him. In his substantive appeal, VA Form 9, the Veteran indicated that he was seen on January 24, 2013 by VA, with what he felt was a poisonous spider bite. The next day, the rashes had multiplied to his left leg and back and that he returned to VA prior to going to LRMC, at which time the VA physician and nurse sent him to LRMC and that he returned afterwards to get the medication that was prescribed. Finally, the Veteran, in his November 2016 hearing, reiterated much of the same as in his substantive appeal, VA Form 9. He testified that he did not have any other symptoms, such as headaches, fever, etc., other than the sores when he was seen at LRMC. Initially, the Board notes that when VA facilities or other government facilities are not capable of furnishing economical hospital care or medical services because of geographic inaccessibility or are not capable of furnishing care or services required, VA may authorize or contract with non-VA facilities for care. 38 U.S.C. § 1703(a); 38 C.F.R. § 17.52(a). Further, in general, if VA is to provide payment or reimbursement of medical expenses incurred in connection with 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). In this case, although the Veteran asserts that he was told by VA personnel to go to LRMC on January 25, 2013, there is no record of such authorization of treatment or documentation that he was seen at VA prior to being admitted to LRMC. Consequently, the Board cannot find that there is prior authorization in this case and payment or reimbursement on that basis is denied. See 38 U.S.C. § 1703. The applicable statute and regulations direct that in the absence of prior appropriate authorization under 38 C.F.R. §§ 17.53 and 17.54, in order to be entitled to payment or reimbursement of unauthorized medical expenses incurred at a non-VA facility, a claimant must show: (a) The care and services rendered were either . . . (3) for any disability of a veteran who has a total disability, permanent in nature, resulting from a service-connected disability, (b) The services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health; and, (c) 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 of the conditions listed in the provision must be met). The standard for finding that services were rendered in a “medical emergency” under 38 U.S.C. § 1728 is the same as that defined in 38 U.S.C. § 1725. Therefore, the claim for payment or reimbursement for initial evaluation and treatment must be 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 a situation involved 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. § 17.1002(b). Since June 8, 2001, the Veteran has been assigned a total disability rating based on individual unemployability due to his service-connected disabilities (TDIU). Accordingly, the Veteran has a permanent and total disability due to his service-connected disabilities, and therefore under the provisions of section (a)(3) above, the Veteran is eligible for payment or reimbursement under the provisions of 38 C.F.R. § 1728. Turning to whether there was a medical emergency in this case, the Board finds that such was not present on January 25, 2013. The Veteran was noted to have sores on his left wrist, left thigh, and buttocks; he had been seen at VA the day before. Aside from his noted rashes/sores, upon admission, the Veteran was not in any acute distress and was alert. The Board notes that a prudent layperson in the Veteran’s situation would not have reasonably viewed the lack of immediate care on January 25, 2013, as placing him in serious jeopardy. In other words, the evidence of record does not demonstrate that, if but for the treatment on January 25, 2013, the Veteran would have died or suffered serious harm nor would a reasonable person believe otherwise. This is confirmed by the private treatment records associated with the claims file, as well as the Veteran’s lay statements regarding the examination at LRMC upon presentation at that facility on January 25, 2013, in both his substantive appeal and in his November 2016 hearing—namely, that he was barely examined and that he was told to get dressed and that he had shingles. Furthermore, the Board does not find that the evidence of record supports the finding that the Veteran, prior to his presentation at LRMC, first was seen at the VA outpatient/walk-in clinic on January 25, 2013; rather the evidence demonstrates that he was seen at that VA facility after going to LRMC. Consequently, it also appears that VA facilities were feasibly available to the Veteran on January 25, 2013. Regardless of that fact, however, as noted above, the Veteran’s condition was not emergent on admission at LRMC on January 25, 2013, and therefore payment or reimbursement of the unauthorized medical expenses incurred at LRMC on January 25, 2013, must be denied at this time based on the evidence of record. See 38 U.S.C. §§ 1703, 1728; 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120, 17.121. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Peters, Counsel