Citation Nr: 18102829 Decision Date: 05/16/18 Archive Date: 05/16/18 DOCKET NO. 15-03 296 DATE: May 16, 2018 ORDER Payment or reimbursement for unauthorized medical expenses incurred at Citrus Memorial Hospital on January 28, 2014, is granted. FINDING OF FACT The evidence of record demonstrates that VA facilities were not feasibly available on January 28, 201, to treat the Veteran’s condition, which was such that a prudent layperson would have reasonably believed that delay in seeking immediate medical attention would have been hazardous to life or health. CONCLUSION OF LAW The criteria for payment or reimbursement for unauthorized medical expenses incurred at Citrus Memorial Hospital on January 28, 2014, have been met. 38 U.S.C. §§ 1703, 1728, 5107; 38 C.F.R. §§ 3.102, 17.52, 17.53, 17.54, 17.120. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from November 1968 to July 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2014 letters of determination by a Department of Veterans Affairs (VA) Medical Center (MC) in Gainesville, Florida. The Veteran sought emergency room treatment on January 28, 2014, at Citrus Memorial Hospital for left elbow swelling and pain for one month, although it had begun to get progressively worse. He indicated that he had a direct blow to his left elbow at home. He was diagnosed with olecranon bursitis, given an ace bandage, told to apply ice, and to follow up with his primary care physician in a week. In his July 2014 notice of disagreement, the Veteran indicated that he was pulling a limb off his roof, when the limb slid, hit the ladder, and caused him to fall backwards onto the ground, where he hit the roots of an oak tree with his left elbow. He further indicated that he was recovering from the flu, which was being treated by VA at that time. He stated that he called the local VA outpatient clinic that he was transferring to, which was only 20-25 miles from his house, and asked to be seen. He was told by the staff at the VA outpatient clinic that they did not offer emergency room services. The Veteran told them that he did not think he could safely drive to the Tampa VA Medical Center because of his generalized elbow pain, and because his lungs were draining, causing breathing problems and choking; he also stated that he had been throwing up fluids several times that day. The Tampa VA Medical Center would have been a 60- to 70-mile drive in heavy traffic; instead, the Brooksville Community-Based Outpatient Clinic (CBOC) staff told him to go to the local emergency room that was only 7 to 10 miles away. Initially, the Board notes that when VA facilities or other government facilities are not capable of furnishing economical hospital care or medical services because of geographic inaccessibility or are not capable of furnishing care or services required, VA may authorize or contract with non-VA facilities for care. 38 U.S.C. § 1703(a); 38 C.F.R. § 17.52(a). Although the Veteran has argued that he had prior authorization to go to the non-VA medical facility, there is no written evidence in the claims file from VA of any prior authorization for medical expenses in this case. Therefore, 38 U.S.C. § 1703(a) does not apply in this case. The applicable statute and regulations provided that in the absence of prior appropriate authorization under 38 C.F.R. §§ 17.53 and 17.54, in order to be entitled to payment or reimbursement of unauthorized medical expenses incurred at a non-VA facility, a claimant must show: (a) The care and services rendered were either: . . . (3) for any disability of a veteran who has a total disability, permanent in nature, resulting from a service-connected disability . . . and, (b) The services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health; and, (c) No VA or other Federal facilities were feasibly available and an attempt to use them beforehand would not have been reasonable. 38 U.S.C. § 1728; 38 C.F.R. § 17.120. If any one of the foregoing requirements is lacking, the benefit sought may not be granted. See Zimick v. West, 11 Vet. App. 45, 49 (1998); Malone v. Gober, 10 Vet. App. 539, 547 (1997); see also Melson v. Derwinski, 1 Vet. App. 334, 337 (the use of the conjunctive “and” in a statutory provision meant that all of the conditions listed in the provision must be met). The standard for finding that services were rendered in a “medical emergency” under 38 U.S.C. § 1728 is the same standard applicable defined in 38 U.S.C. § 1725. Therefore, the claim for payment or reimbursement for 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. 38 C.F.R. § 17.1002(b). The existence of a VA facility does not in and of itself indicate that the VA facility was feasibly available. See Cotton v. Brown, 7 Vet. App 325, 327 (1995). Under the provisions of 38 C.F.R. § 17.53, a VA facility may be considered as not feasibly available when the urgency of the applicant’s medical condition, the relative distance of the travel involved, or the nature of the treatment required makes it necessary or economically advisable to use public or private facilities. 38 C.F.R. §§ 17.52, 17.53. The Veteran is shown to have had a 100 percent disability evaluation for his chronic bronchitis effective since September 2005 and was found in the March 2006 rating decision to be permanently and totally disabled due solely to his service connected disabilities. Therefore he was permanently and totally disabled due solely to service-connected disability at the time of his treatment. This case therefore turns on whether the Veteran’s condition was emergent in nature and whether VA was feasibly available in this case. The Board finds that his condition was emergent and that VA facilities were not feasibly available in this case. The Board acknowledges that the medical records demonstrate that he had a month-long history of left elbow pain and swelling. However, it was also noted to have been progressively worse because of a direct blow. The Veteran’s statements demonstrate that he fell off a ladder, which precipitated his seeking medical treatment at that time. Given the fall followed by an increase in symptoms, as well as the statements from medical professionals that he talked to over the phone at Brookville CBOC that he should seek treatment at his local emergency room, the evidence of record demonstrates that the Veteran’s condition on January 28, 2014, was one that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. Moreover, according to the AOJ, the closest VA facilities that could treat the Veteran were in Gainesville or Lake City, which were an hour and a half or two hours away. The Veteran indicated that he would have driven to the Tampa VA Medical Center, which was an hour and a half drive in heavy traffic. Given the Veteran’s emergent condition, the generalized pain he was suffering, as well as the exacerbation of his service-connected pulmonary condition due to his flu symptoms, the Board finds that driving the distance required to get to a VA facility that could have accommodated his medical needs was not feasible in this case. Accordingly, the Board finds that the criteria necessary for payment or reimbursement for unauthorized medical expenses incurred at Citrus Memorial Hospital on January 28, 2014, have been met in this case, and therefore the claim is granted at this time. See 38 U.S.C. §1728; 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Peters, Counsel