Citation Nr: 19132187 Decision Date: 04/24/19 Archive Date: 04/24/19 DOCKET NO. 15-35 640A DATE: April 24, 2019 ORDER Entitlement to payment or reimbursement of the cost of medical expenses received from April 11, 2014, to April 14, 2014, at Baylor University Medical Center is denied. FINDING OF FACT It was feasible for the Veteran to seek care at a Department of Veterans Affairs (VA) facility, which was located 11.5 miles from the Veteran’s home and 1.2 miles from Baylor University Medical Center. CONCLUSION OF LAW The criteria for payment or reimbursement for unauthorized medical expenses incurred at Baylor University Medical Center from April 11, 2014, to April 14, 2014, are not met. 38 U.S.C. §§ 1703, 1725, 1728, 5107; 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120, 17.121, 17.1002. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1973 to April 1974, and Appellant is a medical provider that is seeking payment or reimbursement for medical services rendered to the Veteran from April 11, 2014, to April 14, 2014. The Board will accept the argument contained in the October 2015 letter submitted with the VA Form 9 because the letter reflects that it was submitted by the legal department at Baylor University Medical Center (“Baylor”). There is no indication, however, that the attorney who submitted this argument has the power of attorney to act on behalf of Baylor in this matter, and/or that she has the proper accreditation to do so. 1. Entitlement to payment or reimbursement of the cost of medical expenses received from April 11, 2014, to April 14, 2014, at Baylor University Medical Center The Veteran has a history of medical complications due to diabetes and other disorders but has no service-connected disorders. On April 11, 2014, the Veteran was taken by ambulance from his home. A Patient Care Report describes the incident as follows: “[Patient] was walking unsteadily with a cane towards ambulance. [Patient] is a diabetic – has a left leg wound that is not healing properly . . . . [Patient] states his leg does hurt from his knee to his toes stating 10 out [of] 10 pain . . . . [Patient] transported to Baylor ER per [Patient] request.” At Baylor, the Veteran indicated to several providers that five months earlier he was admitted to VA for his left leg wound and treated with antibiotics. Over the last three to five days, his condition had worsened. Only hip pain is specifically referenced in records dated April 11, 2014. See Physician Note at 7:40. An April 13, 2014, medical record indicates treatment for “increased leg pain and swelling” and states that “[o]ver the last 5–6 days [his wound] has worsened with drainage and a strong malodor to it.” In July 2014, VHA denied the Appellant’s claim on the basis that a VA facility was feasibly available. The Appellant is appealing that decision. The August 2015 statement of the case further indicated that the treatment was not for an emergency situation. The Veteran was not permanently and totally disabled due to his service-connected disabilities from April 11, 2014, to April 14, 2014, and his treatment was not for any service-connected disability or for any disorder that was aggravated by his service-connected disabilities. Likewise, the Veteran’s treatment was not for any injury or an 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. Nonetheless, the Veterans Millennium Health Care and Benefits Act also provides general authority for reimbursement for the reasonable value of emergency treatment furnished in a non-VA facility to those Veterans who are active VA health-care participants (i.e., enrolled in the annual patient enrollment system and recipients of a VA hospital, nursing home, or domiciliary care under such system within the last 24-month period) and who are personally liable for such non-VA treatment and not eligible for reimbursement under the provisions of 38 U.S.C. § 1728. 38 U.S.C. § 1725; 38 C.F.R. §§ 17.1000–1008. Payment or reimbursement under 38 U.S.C. § 1725 for emergency treatment (including medical services, professional services, ambulance services, ancillary care and medication (including a short course of medication related to and necessary for the treatment of the emergency condition that is provided directly to or prescribed for the patient for use after the emergency condition is stabilized and the patient is discharged)) will be made only if all of the following conditions are met: (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 preponderance of the evidence is against a finding that a VA facility was not feasibly available. The Veteran selected Baylor over VA at his own request. The Dallas VA Medical Center is 11.5 miles from the Veteran’s home, while Baylor is 10.3 miles from the Veteran’s home. In other words, the Dallas VA Medical Center is only 1.2 miles further away than Baylor. Furthermore, the Veteran was indisputably admitted on a Friday morning, with no indication whatsoever that the Dallas VA Medical Center was closed or not admitting patients. For these reasons, the preponderance of the evidence is against a finding that the Dallas VA Medical Center was not feasibly available. In an October 2015 letter accompanying the VA Form 9, an attorney from Baylor’s legal department argues that entitlement to reimbursement is appropriate because “to deny [the Veteran] assessment and treatment when he arrived at the emergency department . . . would have been a violation of Emergency Medical Treatment and Active Labor Act (EMTALA).” Unfortunately, Baylor’s duty to treat under EMTALA does not by itself support entitlement to medical reimbursement under 38 U.S.C. § 1725 where the preponderance of the evidence is against a finding that a VA facility was not feasibly available. Counsel goes on to state the following: “Admission at the VA was not feasible as [the Veteran] required immediate emergency treatment due to his severe leg pain and swelling in the lower left and right extremity. The only appropriate care for [the Veteran] was to present himself to Baylor for emergency services.” No basis is provided to support why admission to VA “was not feasible” or why it was “only appropriate” to seek care at Baylor rather than VA. Counsel’s arguments by themselves do not support a finding that a VA facility was not feasibly available. The November 2014 NOD does not dispute that a VA facility was feasibly available. Rather, the NOD begins by stating, “[w]e have been informed that our claim was due to lack of medical necessity” and emphasizes that the “severity of illness and the intensity of service with which we provided, qualified him to receive those services in an inpatient setting based on the Interqual criteria he met as indicated above.” In conclusion, the Veteran indisputably selected treatment at Baylor rather than VA, even though a VA facility was only 1.2 miles away from Baylor. There is no evidence that VA was not feasibly available at the time the Veteran sought treatment for his left leg wound. For these reasons, the preponderance of the evidence is against a finding that a VA facility was not feasibly available. For this reason, the Appellant’s claim for entitlement to medical payment or reimbursement of the cost of medical expenses received from April 11, 2014, to April 14, 2014, at Baylor must be denied. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel