Citation Nr: 18157726 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 14-18 429 DATE: December 13, 2018 REMANDED The issue of entitlement to payment or reimbursement of unauthorized medical expenses incurred at West Valley Medical Center on November 24, 2013, is remanded. REASONS FOR REMAND The Veteran had active service from October 1970 to July 1973; from August 1979 to September 1982; and from January 1991 to June 1991. He served in Southwest Asia. The Veteran died in January 2015. The Appellant is the Veteran’s surviving spouse. In May 2015, she was substituted as the appellant in this appeal. The Veteran appeared at a July 2014 hearing before the undersigned Veterans Law Judge at the Boise, Idaho, Regional Office. The hearing transcript is of record. The issue of entitlement to payment or reimbursement of unauthorized medical expenses incurred at West Valley Medical Center on November 24, 2013, is remanded. The Appellant asserts that she is entitled to payment or reimbursement for unauthorized medical expenses incurred at West Valley Medical Center on November 24, 2013, pursuant to the Millennium Bill Act as the Veteran required emergency care for constipation, a side effect of lung cancer treatment, which she and the Veteran believed to be a medical emergency at the time. The Millennium Bill Act provides general authority for reimbursement for the reasonable value of emergency treatment furnished in a non-Department of Veterans Affairs (VA) facility to those veterans who are active VA health-care participants (enrolled in the annual patient enrollment system and recipients of VA hospital, nursing home, or domiciliary care under such system within the last 24-month period) and who are personally liable for the non-VA treatment and not eligible for reimbursement under the provisions of 38 U.S.C. § 1728. 38 U.S.C. § 1725; 38 C.F.R. 17.1000 1008. Under the provisions of the controlling law and regulations, the Veteran must satisfy all of the following conditions to be eligible for payment or reimbursement for emergency services for nonservice connected disabilities in non-VA facilities: (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 disorder 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 such provider 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 the 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); *** (h) The veteran is not eligible for reimbursement under 38 U.S.C. § 1728 for emergency treatment provided. Failure to satisfy any one of the above criteria precludes VA from paying or reimbursing unauthorized private medical expenses. 38 C.F.R. § 17.1002. Clinical documentation from West Valley Medical Center dated in November 2013 shows that the Veteran complained of moderate abdominal pain and constipation which had started that day and that he had not had a bowel movement in three days. He was noted to have recently started chemotherapy for lung cancer. The Veteran was seen in the emergency room, provided a mineral oil enema, and discharged home. In his January 2014 notice of disagreement and April 2014 Appeal to the Board (VA Form 9), the Veteran indicated that “patient was in distress due to impacted fecal matter (constipation) that regardless of the home remedy attempts would not be released.” He believed that his symptoms were brought on by chemotherapy treatments associated with nonservice connected lung cancer and therefore constituted a medical emergency. Under the statutory provision of 38 U.S.C. § 1725, the term “emergency treatment” is defined as medical care or services are rendered in a medical emergency of such nature that a prudent layperson reasonably expects that delay in seeking immediate medical attention would be hazardous to life or health. The Board finds that the Veteran sought treatment at a non-VA medical facility for a lung cancer treatment complication that he and his wife reasonably believed constituted a medical emergency. In addition, because of the Veteran’s health status, and state of distress, the Board finds that travelling an hour to the nearest VA facility rather than to the nearby emergency facility, was not feasible. Therefore, for the purposes of this remand only, the Board of Veterans’ Appeals (Board) will assume that the expenses in question arose from “emergency services were provided in a hospital emergency department.” Unfortunately, the Board observes that the record has not been developed as to the remaining criteria under the Millennium Bill Act. The matter is REMANDED for the following action: Readjudicate the issue of entitlement to payment or reimbursement of unauthorized medical expenses incurred at West Valley Medical Center on November 24, 2013. All relevant provisions of 38 U.S.C. § 1725 must be addressed. The Veteran’s treatment on November 24, 2013, is to be assumed to be “emergency treatment” for the purposes of this remand, and it is found that it was not feasible to travel the longer distance to a VA facility because of the Veteran’s state of health and state of distress. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel