Citation Nr: 18159946
Decision Date: 12/20/18	Archive Date: 12/20/18

DOCKET NO. 15-09 308
DATE:	December 20, 2018
ORDER
Payment or reimbursement of unauthorized medical expenses incurred for treatment provided by St. Vincent’s Medical Center from May 24, 2014 through May 25, 2014 is granted.
FINDING OF FACT
Medical treatment provided by St. Vincent’s Medical Center from May 24, 2014 through May 25, 2014 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.
CONCLUSION OF LAW
The criteria for payment or reimbursement of the medical expenses incurred St. Vincent’s Medical Center from May 24, 2014 through May 25, 2014 are satisfied.  38 U.S.C. §§ 1703(a), 1725, 5107; 38 C.F.R. §§ 17.52, 17.120, 17.130, 17.1000-1008.

REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty in the Army from January 1973 to August 1973.  
This matter is on appeal before the Board of Veterans Appeals (Board) from an October 2014 decision from the North Florida/ South Georgia Veterans Health System in Gainesville, Florida.
On the Veteran’s February 2015 VA Form 9, he requested a Board hearing before a Veterans Law Judge.  In an October 2018 letters he was notified that a Board hearing was scheduled for November 26, 2018.  On November 23, 2018, the VA received notice through his accredited representative that the Veteran wished to withdraw his Board hearing request.  See 38 C.F.R. § 20.702(e).  As such, the hearing request is deemed withdrawn.
The Veteran reports that he went to St. Vincent’s Hospital due to severe chest pains.  He contends that this was a dire emergency and because the attack occurred on a weekend, he had no choice but to proceed to the nearest hospital emergency room.  See October 2014 notice of disagreement.
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.  The record does not reflect, and the Veteran has not reported, that the treatment provided by St. Vincent’s Medical Center from May 24, 2014 through May 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. 
The Veteran does not have a service-connected disability.  Additionally, the Veteran’s treatment was not for an 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 in this case.  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’s claim for payment or reimbursement was denied on the basis that he did not file his claim within the applicable time period.  Claims for reimbursement under 38 U.S.C.A. § 1725 must be received within 90 days of the latest of the following: (1) the date that the Veteran was discharged from the facility that furnished the emergency treatment; (2) the date of death, but only if the death occurred during transportation to a facility for emergency treatment or if the death occurred during the stay in the facility that included the provision of the emergency treatment; or (3) the date the Veteran finally exhausted, without success, action to obtain payment or reimbursement for the treatment from a third party.  38 C.F.R. § 17.1004(d).
VA clinical tracking records associated with the claims file reflects that the VAMC was working on a claim for reimbursement as early as May 27, 2014, days after the Veteran’s medical treatment at issue which was provided by St. Vincent’s Medical Center from May 24, 2014 through May 25, 2014.  Thus, the Board finds that the Veteran’s reimbursement claim was timely filed.
In regard to the merits of the Veteran’s claim, the services in question were provided by an emergency department; the Veteran is financially liable to the private provider for the treatment; he is without health insurance; 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; and he is not eligible for reimbursement under 38 U.S.C. 1728 for the emergency treatment provided.  Further, the record does not indicate that the injury in question was caused by an accident or work-related injury.  See 38 C.F.R. §§ 17.1002 (a)-(h).
The VA clinical tracking records indicate that the Veteran visited the emergency room and was assessed with chest pain, hypertension, and morbid obesity at 8:08 pm on Saturday, May 24, 2014 and that the claim was classified as emergent.  The Board resolves all reasonable doubt in the Veteran’s favor and finds the totality of the evidence of record suggests that the Veteran’s condition was 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.  The Board concludes that payment or reimbursement of unauthorized medical expenses incurred for treatment provided by St. Vincent’s Medical Center from May 24, 2014 through May 25, 2014 is warranted. 
 
S. C. KREMBS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	C. Samuelson, Counsel