Citation Nr: 18158731 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 16-35 221A DATE: December 18, 2018 ORDER Reimbursement or payment for medical expenses incurred due to non-VA medical care, from June 21, 2015, through June 22, 2015, at Bayfront Health (BH), is granted. FINDING OF FACT The medical treatment at BH, from June 21, 2015, through June 22, 2015, 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 health; and an attempt to use the nearest VA medical facility at that time would not have been considered reasonable by a prudent layperson at that time. CONCLUSION OF LAW The criteria for entitlement to payment or reimbursement of the medical expenses incurred from June 21, 2015, through June 22, 2015, at BH, have been met. 38 U.S.C. §§ 1703(a), 1728, 5107 (2012); 38 C.F.R. §§ 17.52, 17.120, 17.130, 17.1000-1008 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1967 to July 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 decision issued by the Department of Veterans Affairs (VA) Veterans Hospital in Tampa, Florida. Entitlement to reimbursement or payment for medical expenses incurred due to non-VA medical care, from June 21, 2015, through June 2, 2015, at BH 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 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). 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. As relevant, 38 U.S.C. § 1728 applies when an unauthorized emergency treatment was rendered to a veteran in need of such emergency treatment for any disability of that veteran who has a total disability permanent in nature resulting from a service-connected disability. 38 U.S.C. § 1728 (2012); 38 C.F.R. § 17.120(a)(3) (2017). Given that the Veteran is currently in receipt of a total disability rating for his service-connected bilateral hearing disability, the Board finds that 38 U.S.C. § 1728 is applicable. Under 38 U.S.C. § 1728, VA shall reimburse the expenses of care for eligible veterans from a private or public (or Federal) hospital not operated by VA, or of any other medical services not previously authorized (including transportation) when there have been: (a) care and services not previously authorized that were rendered in a medical emergency of such nature that delay would have been hazardous to life or health; and (b) 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 C.F.R. § 17.120(a) (2017). As for what constitutes a medical emergency, emergency treatments not previously authorized are those rendered in a medical emergency of such nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or death. 38 C.F.R. § 17.120(b). This standard is met by 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. 38 C.F.R. § 17.120(b). Analysis As an initial matter, the record does not reflect, and the Veteran has not reported, that the non-VA medical care at BH was authorized in advance. See 38 U.S.C. § 1703 (2012); 38 C.F.R. § 17.52 (2017). Therefore, 38 U.S.C. § 1728 applies. Therefore, the remaining issues are whether the medical event from June 21, 2015, through June 22, 2015, was emergent; and whether a VA facility was feasibly available at that time. The totality of the clinical evidence of record suggests that, from June 21, 2015, through June 22, 2015, 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. He has competently reported that he was experiencing chest pain, see May 2016 Statement, which the Board finds to be reasonably suggestive of hazardous medical condition to a layperson without medical expertise or knowledge. The clinical evidence of record also supports his report, as the emergency treating physician assessed that the Veteran was reporting “chest congestion, fever, [and] urinary frequency,” see June 21, 2015 emergency treatment note, which reasonably suggests that the Veteran was experiencing acute symptoms of sufficient severity at the time of the June 21, 2015 non-VA medical care. He was discharged on June 22, 2015. See June 22, 2015 discharge note. Therefore, under these circumstances, the Board resolves all reasonable doubt in his favor and finds that a prudent layperson in the Veteran’s position would have reasonably expected that delay in seeking immediate medical care would have been hazardous to his health. The Board also finds that a VA medical facility with an emergency department was not feasibly available at the time and an attempt to use this alternative service beforehand would not have been considered reasonable by a prudent layperson. In this regard, as the Veteran has reported, see May 2016 Statement, the nearest VA medical facility was more than forty miles from the Veteran’s residence. The Veteran accordingly sought emergency care from BH, which was merely four minutes away from his residence. Therefore, the Board finds that the evidence is at least in relative equipoise as to whether a VA medical facility was not feasibly available given that an attempt to use the nearest VA medical facility would not have been considered reasonable by a prudent layperson under the above-described circumstances. Accordingly, the Board concludes that payment or reimbursement of the Veteran’s non-VA treatment at BH, from June 21, 2015, through June 22, 2015, is warranted. His appeal is granted. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Kim, Associate Counsel