Citation Nr: 19132245 Decision Date: 04/25/19 Archive Date: 04/24/19 DOCKET NO. 14-14 574A DATE: April 25, 2019 ORDER Payment or reimbursement of unauthorized medical expenses incurred for private treatment at Paris Regional Medical Center on October 17, 2012 is granted. REMANDED The issue of whether payment or reimbursement is warranted for unauthorized medical expenses incurred for private treatment at Paris Regional Medical Center on August 27, 2012, is remanded. FINDINGS OF FACT 1. Payment or reimbursement of medical expenses incurred at Paris Regional Medical Center on October 17, 2012 was not pre-authorized by VA. 2. Resolving doubt in favor of the Veteran, the non-VA care provided at Paris Regional Medical Center on October 17, 2012 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 feasibly available for treatment of this condition. CONCLUSION OF LAW The criteria for payment or reimbursement of the medical expenses incurred at Paris Regional Medical Center on October 17, 2012 are met. 38 U.S.C. §§ 1703, 1725, 5107; 38 C.F.R. §§ 17.52, 17.1000-1008. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the Marine Corps from December 1998 to January 2002. These matters come before the Board of Veterans’ Appeals (Board) on appeal from November 2012 and March 2013 decisions from the Department of Veterans Affairs (VA) North Texas Health Care System. The Veteran contends that she visited Paris Regional Medical Center on October 17, 2012 due to severe abdominal pain, diarrhea, and discomfort. She asserts that the nearest VA hospital was two hours away and it was not possible for her to make the two-hour drive due to her gastrointestinal problems and pain score of 10 out of 10. See November 2012 claim; June 2013 notice of disagreement; April 2014 VA Form 9. 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 Paris Regional Medical Center on October 17, 2012 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’s gastrointestinal condition on October 17, 2012, was not related to a service-connected disability, or a nonservice-connected disability associated with and held to be aggravating a service-connected disability. Further, the Veteran does not have a total disability permanent in nature from a service-connected disability, and the treatment in question 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 in this case. See 38 C.F.R. § 17.120. Nevertheless, the Veteran is eligible for reimbursement under 38 U.S.C. § 1725. 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 evidence shows that the service in question was provided by a facility held out as providing emergency care to the public; 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; the Veteran was financially liable to the provider for her treatment; she did not have coverage under another health plan; the injury in question was not caused by an accident or work-related injury; and she 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); VA Clinical Tracking Record; October 2012 private treatment record. The remaining issues are whether the medical event on October 17, 2012 was of an emergent nature and whether a VA facility was feasibly available at that time. The Board finds that the Veteran’s condition was emergent as the private treatment records show that she was suffering from abdominal pain and diarrhea for two days that was moderate in severity. Further, the Paris Regional Medical Center screening exam form indicates that this was an emergent medical condition. See October 2012 private treatment records. The Board also finds, resolving all doubt in the Veteran’s favor, that a VA facility was not feasibly available for treatment as an online map confirms that the closest VA facility to the Veteran’s residence at the time of his October 17, 2012 treatment was 43.6 miles away; while Paris Regional Medical Center was only 3.6 miles from the Veteran’s residence. The Board finds the Veteran’s contention that it was not possible for her to make the drive to the VA facility due to her pain and gastrointestinal problems to be credible. Accordingly, the Board concludes that payment or reimbursement of the Veteran’s non-VA treatment provided by Paris Regional Medical Center on October 17, 2012 is warranted. REASONS FOR REMAND The Veteran contends that she received emergency treatment at Paris Regional Medical Center on August 27, 2012 due to severe pain, diarrhea, and abdominal discomfort. See April 2012 notice of disagreement; April 2014 VA Form 9. The claims file does not contain private treatment records from Paris Regional Medical Center dated August 27, 2012. A remand is required to obtain these records. The matter is REMANDED for the following action: After obtaining any necessary authorization from the Veteran, obtain and associate with the claims file all private treatment records from Paris Regional Medical Center dated August 27, 2012. All reasonable attempts should be made to obtain such records. Any negative response should be in writing and associated with the claims file. If any record cannot be obtained after reasonable efforts have been made, issue a formal finding that such record does not exist or that further efforts to obtain such record would be futile, which should be documented in the claims file. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Samuelson, Counsel