Citation Nr: 18159873 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 15-22 621 DATE: December 20, 2018 ORDER Payment or reimbursement of medical expenses incurred in connection with the Veteran’s non-VA care at Firelands Regional Medical Center from August 22, 2014 to August 25, 2014 is granted. FINDINGS OF FACT 1. Payment or reimbursement of medical expenses incurred in connection with the Veteran’s non-VA care at Firelands Regional Medical Center from August 22, 2014 to August 25, 2014 was not pre-authorized by VA. 2. The non-VA care at Firelands Regional Medical Center from August 22, 2014 to August 25, 2014 was for a condition of such nature whereby delay in obtaining the treatment would have been hazardous to life or health and a VA facility was not available for treatment of this condition. CONCLUSION OF LAW The criteria for payment or reimbursement of the medical expenses incurred at non-VA care at Firelands Regional Medical Center from August 22, 2014 to August 25, 2014 are met. 38 U.S.C. §§ 1703, 1725, 5107; 38 C.F.R. §§ 17.52, 17.120, 17.1000-1008. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the Army from September 1969 to March 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 decision issued by the Louis Stokes Cleveland Veterans Affairs (VA) Medical Center in Cleveland, Ohio. The Veteran contends that he suffered a heart attack on August 22, 2014 and was transported to Fisher Titus Medical Center. He was then transferred to Firelands Regional Medical Center in Sandusky, Ohio by life flight, where heart catherization was immediately performed. He contends that a patient advocate informed him that VA was notified of his hospitalization and that the hospital was awaiting a reply from the VA hospital at Wade Park as to the availability of a bed and transportation details. He then developed an infection in his right leg and was placed under the care of an infectious disease specialist and he remained in the intensive care unit (ICU) until August 24, 2014. See October 2014 notice of disagreement. The Veteran contends that Fisher Titus was not capable of providing an emergency heart catherization and the only options for transfer were Cleveland Clinic or Firelands Hospital. See May 2015 VA Form 9. He further reports that this was a medical emergency which required immediate treatment and his required care was not available at the local VA hospital. See November 2018 Written Brief Presentation. 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; 38 C.F.R. § 17.52. 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. As an initial matter, the record does not reflect, and the Veteran has not reported, that the non-VA medical care at Firelands Regional Medical Center from August 22, 2014 to August 25, 2014 was authorized in advance. See 38 U.S.C. § 1703; 38 C.F.R. § 17.52. 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, 38 U.S.C. §§ 1725 and 1728. At the time of the Veteran’s treatment at Firelands Regional Medical Center from August 22, 2014 to August 25, 2014, service connection was not in effect for his coronary artery disease. Additionally, the Veteran’s treatment was not for any injury or illness contracted in the course of a rehabilitative program. Consequently, the Veteran is not eligible for payment or reimbursement under 38 U.S.C. § 1728. See 38 C.F.R. § 17.120. Pursuant to 38 U.S.C. § 1725, payment or reimbursement for emergency services for non-service-connected conditions in non-VA facilities may be authorized if all of the following conditions are 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 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 does not have coverage under a health-plan contract that would fully extinguish the medical liability 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 the 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, 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. 38 C.F.R. § 17.1002. The Veteran contends that he is financially liable to the private provider for the treatment. See October 2014 notice of disagreement. Further, the evidence shows that the services in question were provided by facility held out as providing emergency care to the public; the injury in question was not caused by an accident or work-related injury; 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 was without health insurance; and he is not eligible for reimbursement under 38 U.S.C. 1728 for the emergency treatment provided. See 38 C.F.R. §§ 17.1002 (a)-(h); August 2014 VA treatment record. The remaining issues are whether the medical event from August 22, 2014 to August 25, 2014 was of an emergent nature and whether a VA facility was feasibly available at that time. The August 25, 2014 discharge summary from Firelands Regional Medical Center shows that the Veteran was life-flighted from Fisher Titus Medical Center following a long drive from Toledo back to Norwalk with sudden onset of erythema, shortness of breath, anxiety, and hypertension. His electrocardiography (ECG) clearly revealed abnormalities with J-point elevation in leads V1, V2, and aVR and ST depression in inferior leads, possibly consistent with anterior myocardial infarction. He was life-flighted to the catherization laboratory where he underwent diagnostic catherization revealing 50 percent disease in the proximal mid and 50 to 75 percent disease in the distal left anterior descending artery (LAD). They infused intracoronary nitroglycerin down the left coronary system with excellent dilation of the LAD and left coronary system. The April 2015 statement of the case notes that the VA was not available for emergent cardiac services, but Fisher Titus was able to provide the services. However, a May 2015 addendum medical record from Fisher Titus specifically states Fisher Titus Medical Center does not have the capability of treating acute myocardial infarction via cardiac catherization and therefore the patient’s only option was transfer to an outlying facility, Firelands being the closest facility. When considering the evidence of record, the Board resolves all reasonable doubt in the Veteran’s favor and finds the totality of the clinical evidence of record suggests that 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 life or health. Further, the Board finds that a VA facility was not feasibly available. The Board concludes that payment or reimbursement of the Veteran’s non-VA treatment provided by Firelands Regional Medical Center from August 22, 2014 to August 25, 2014 is warranted. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Samuelson, Counsel