Citation Nr: 18124232 Decision Date: 08/06/18 Archive Date: 08/06/18 DOCKET NO. 15-17 556 DATE: August 6, 2018 ORDER Payment or reimbursement of medical expenses incurred at a private hospital from March 15, 2014 to March 18, 2014 is denied. FINDINGS OF FACT 1. The Veteran served on active duty from November 1971 to July 1973. 2. The medical services provided at a private hospital from March 15, 2014 to March 18, 2014 were not rendered in a medical emergency of such a nature that delay would have been hazardous to life or health, and the situation was not analogous to one where federal facilities were not feasibly available and an attempt to use them beforehand would not have been reasonable. CONCLUSION OF LAW The criteria for entitlement to reimbursement of medical expenses incurred at a private hospital on from March 15, 2014 to March 18, 2014 have not been met. 38 U.S.C. §§ 1703, 1725, 1728 (2012); 38 C.F.R. §§ 17.120-17.121 (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 or the veteran must be a participant in a vocational rehabilitation program. 38 U.S.C. § 1728(a); 38 C.F.R. § 17.120. The Veteran did not meet the criteria for payment of authorized or unauthorized medical expenses of 38 U.S.C. § 1728; thus, his 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, and 1728(a) (2012). 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 in Florida from March 15, 2014 to March 18, 2014. Private treatment records show that he reported to the private emergency room on March 15, 2014 with an abscess on the left upper thigh that he believed to be an infected bug bite, which first manifested two weeks prior. The Veteran indicated that he had attempted to drain the abscess himself. He endorsed feeling dizzy and weak and described subjective fever and chills. The pain was mild to moderate. He was ambulatory and accompanied by a friend. He was described as alert and oriented to person, place, and time. There were no acute signs of distress. The abscess was drained, and testing revealed infection methicillin-resistant Staphylococcus aureus (MRSA). Due to the size and location of the abscess, he was admitted to inpatient status for observation and treatment with antibiotics. He was discharged to home on March 18, 2014 and advised to follow-up with the wound care clinic. The Veteran asserts that he chose the private hospital because it was 4 miles from his home, while the nearest VA facility was 17 miles from his home and that at the time he sought treatment, he was unstable and disoriented with blurred and double vision due to the staff infection in his upper thigh. On his VA Form 9, he also describes dizziness, and migraine headaches. He indicated that he chose the shorter distance because of safety concerns for himself and others on the road. He has further indicated that he delayed treatment because he had been responsible for taking his ex-wife to and from her cancer treatments and that he prioritized her care over his own. The questions before the Board are whether the Veteran’s situation was emergent and whether the distance rendered the VA facilities not feasibly available. Regarding the former question, the Board affords him the benefit of the doubt and finds his medical situation on March 15, 2014 to be emergent. He had had an infected abscess growing on his thigh for two weeks, was experiencing dizziness, headaches, blurred and double vision, and subjectively, a fever with chills. It is reasonable that he considered his situation to require emergency care at the time. However, the Board also finds the nearest VA facility at 17 miles to have been feasibly available. While the Veteran did not want to spend more time on the road than necessary given his symptoms, the admission note reflects that he was accompanied by a friend. He has implied in his notice of disagreement and VA Form 9 that he drove himself to the hospital and has not mentioned the friend in his statements. However, it seems reasonable that if the Veteran was feeling so unwell that he felt unsafe driving, it seems likely that the friend accompanying him also drive the car. There is no indication that the friend was limited in his or her ability to drive the distance of 17 miles. Consequently, the VA facility was feasibly available to the Veteran for the entirety of his treatment that began on March 15, 2014 and ended on March 18, 2014. As all criteria under 38 U.S.C. § 1725 must be met for the claim to be granted, including that VA facilities not be feasibly available, the Veteran’s claim for payment or reimbursement of expenses incurred at a private hospital from March 15, 2014 to March 18, 2014 is denied. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel