Citation Nr: 18157759 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 16-53 458A DATE: December 13, 2018 ORDER Payment or reimbursement of medical expenses incurred at a private hospital on March 20, 2016 is denied. FINDINGS OF FACT 1. The Veteran served on active duty from December 1973 to November 1975. 2. Payment or reimbursement of medical expenses incurred for the Veteran’s care on March 20, 2016 at a private hospital was not pre-authorized by VA. 3. The care received was not for a condition of such nature whereby delay in treatment would have been hazardous to life or health; and/or it was reasonable to attempt to use the VA hospital emergency room (ER) located approximately 100 miles away. CONCLUSION OF LAW The criteria for payment or reimbursement for unauthorized medical expenses incurred at a private hospital on March 20, 2016 have not been met. 38 U.S.C. §§ 1703, 1728, 5107 (2012); 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA is authorized to reimburse veterans for emergency medical treatment under 38 U.S.C. § 1725 and 38 U.S.C. § 1728. To be eligible for reimbursement under 38 U.S.C. § 1728, the treatment must have been for associated with a service-connected disability, the veteran must be a participant in a vocational rehabilitation program, or the veteran must be rated as totally disabled. 38 U.S.C. § 1728(a); 38 C.F.R. § 17.120. As none of these criteria are met, the claim for payment must be considered under criteria for determining entitlement under the Veterans Millennium Healthcare and Benefits Act (Act), 38 U.S.C. § 1725; 38 C.F.R. §§ 17.1000-17.1008. For coverage under 38 U.S.C. § 1725, a veteran must be an individual who is an active Department health-care participant who was personally liable for emergency treatment furnished the veteran in a non-Department facility. In claims involving payment or reimbursement by VA for medical expenses incurred as a result of treatment at a private facility, there are three possible theories of entitlement: (1) the private medical services were authorized by VA; (2) the veteran is entitled to payment or reimbursement for services not previously authorized that are related to or aggravated a service-connected disability; or (3) the veteran is entitled to payment or reimbursement for services not previously authorized relating to a nonservice-connected disability. See 38 U.S.C. §§ 1703(a), 1725, 1728(a). Generally, the admission of a veteran to a non-VA hospital at VA expense must be authorized in advance. See 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); see 38 U.S.C. § 1703(a); 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, whether formal or informal, by telephone, telegraph or other communication, made by the veteran or by others in his or her behalf, is made to VA within 72 hours after the hour of admission. 38 C.F.R. § 17.54. A veteran is an active Department health-care participant if the veteran is enrolled in the health care system established under § 1705(a) and received care within the 24-month period preceding the furnishing of such emergency treatment. 38 U.S.C. § 1725 (b)(2). A veteran is personally liable for emergency treatment furnished the veteran in a non-Department facility if the veteran is financially liable to the provider of emergency treatment for that treatment; has no entitlement to care or services under a health-plan contract (determined, in the case of a health-plan contract as defined in § (f)(2)(B) or (f)(2)(C), without regard to any requirement or limitation relating to eligibility for care or services from any department or agency of the United States); has no other contractual or legal recourse against a third party that would, in whole, extinguish such liability to the provider; and is not eligible for reimbursement for medical care or services under § 1728. For purposes of this section, “emergency treatment” means medical care or services furnished, in the judgment of the Secretary, when Department or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable; when such 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; and until such time as the veteran can be transferred safely to a Department facility or other Federal facility and such facility is capable of accepting such transfer; or such time as a Department facility or other Federal facility accepts such transfer if at the time the veteran could have been transferred safely to a Department facility or other Federal facility, no Department facility or other Federal facility agreed to accept such transfer; and the non-Department facility in which such medical care or services was furnished made and documented reasonable attempts to transfer the veteran to a Department facility or other Federal facility. 38 U.S.C. § 1725(f)(1). The Veteran seeks payment or reimbursement of medical expenses incurred at a private hospital on March 20, 2016 for treatment of left shoulder pain. The appeal was denied on the basis that the care was not emergent and VA facilities were feasibly available. All other criteria for the claim were met. VA treatment notes reflect that the Veteran was seen for the same symptoms at a local VA clinic on March 15, 2016, at which time he was given an intramuscular injection of pain medication and x-rays were taken. The x-rays showed no bony abnormality. He asserts that the pain had become unbearable by the weekend and so he visited the nearest ER on March 20, 2016, a Sunday. The VA hospital closest to him is in Lake City, Florida, approximately 100 miles away, and he contends that the pain was so severe that he could not drive that distance. Private treatment records show that the Veteran arrived at a private ER at 15:54 with complaints of moderate to severe aching pain in the left shoulder and arm that was gradually worsening with onset weeks ago. He was prescribed pain medication and discharged a few hours later. The complaints were documented to be non-urgent, and he was found to be in no acute distress. Neither treatment notes nor the Veteran’s statements present a reason he could not make another appointment at the local VA clinic before visiting the ER, whether for the Friday before or the Monday after the ER visit. In fact, there is no record of him contacting VA at all before the ER visit, and the only VA note is administrative, documenting receipt of private treatment records regarding non-VA care. In light of the above facts, the Board determines that the Veteran’s condition was not emergent to the extent that VA facilities were not feasibly available and an attempt to use them beforehand would not have been reasonable at the time given the distance to the VA facility. The private treatment notes do not convey that delay in treatment would have been hazardous to his health or that he was in such distress that driving the 100 miles to the nearest VA facility would not have been possible. Thus, the Veteran’s medical condition was not emergent such that VA facilities were not feasibly available to him for the care he received on March 20, 2016. Consequently, not all criteria under 38 U.S.C. § 1725 for payment or reimbursement of medical expenses incurred at a private hospital on that date have been met, and the appeal is denied. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel