Citation Nr: 19166152 Decision Date: 08/27/19 Archive Date: 08/27/19 DOCKET NO. 18-31 700 DATE: August 27, 2019 ORDER Payment or reimbursement of unauthorized medical expenses incurred for treatment provided by Pyramid Peaks Emergency Physicians, LLC at Blake Medical Center on May 5, 2017 is granted. FINDING OF FACT The May 5, 2017 medical treatment provided by Pyramid Peaks Emergency Physicians, LLC 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 on May 5, 2017 by Pyramid Peaks Emergency Physicians, LLC at Blake Medical Center are met. 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 Navy from August 2010 to April 2015. This appeal to the Board of Veterans’ Appeals (Board) is from a July 2017 decision by the Department of Veterans Affairs Medical Center (VAMC) in Bay Pines, Florida. According to the Veteran, she began receiving chemotherapy at the Moffit Cancer Center in Tampa, Florida in January 2017. See May 2018 VA substantive appeal. On the day at issue, the Veteran reports that she was working at Blake Medical Center when she experienced “sharp stabbing pain” in a chemo port site located on her chest. See January 2018 notice of disagreement. She was concerned that the pain was a sign of an infection. See id. As a result, she contacted the Moffit Cancer Center. See id. The center advised her to seek emergency services at Blake Medical Center because she was already at the hospital. See id. Her supervisor permitted her to leave work, and she checked herself into the emergency department at Blake Medical Center. See id. 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. 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 May 5, 2017 medical treatment at Blake Medical Center 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. Application of either statute is generally dependent on whether the Veteran has an adjudicated service-connected disability. The Veteran does not have a service-connected disability. Additionally, the Veteran’s treatment 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. 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 VAMC determined that the services in question were provided by a hospital emergency department; the Veteran is financially liable to the private provider for the treatment; she is without health insurance; the injury in question was not caused by an accident or work-related injury; she 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. See 38 C.F.R. §§ 17.1002 (a)-(h). The remaining issues are whether the medical event on May 5, 2017 was of an emergent nature; and whether a VA facility was feasibly available at that time. According to the January 2018 notice of disagreement, the Veteran experienced very sharp pain at a chemo port site and she was concerned of a possible infection. Further, she stated that the treating cancer center advised her to visit the emergency department at Blake Medical Center. May 2017 treatment records from Blake Medical Center documented that the Veteran presented with complaints of “sharp pain from port.” The Veteran’s medical history included lymphoma. The Veteran stated that she had had similar symptoms “a few times before.” She received chemotherapy on Monday, four days earlier. The Veteran did not have a fever, cough, or illness. Upon examination, a blood culture test was completed. The Veteran was discharged the same day. When considering the evidence of record, the Board resolves all reasonable doubt in the Veteran’s favor and finds the totality of the clinical evidence of record suggests that a prudent layperson in the Veteran’s position would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to her life or health. Specifically, the Veteran credibly reported that she was undergoing chemotherapy when she experienced pain at the port site and the Moffit Cancer Center advised her to seek emergency services at Blake Medical Center. Therefore, a prudent layperson with Veteran’s medical history would have thought that the symptoms were emergent in nature. Further, the Board finds that a VA facility was not feasibly available and an attempt to use it beforehand would not have been considered reasonable by a prudent layperson. Initially, the Board acknowledges that the Veteran was currently at a medical center when she first experienced the sharp pain. The nearest VA medical facility from Blake Medical Center was Bradenton VA clinic. An online map shows that the clinic was 9.3 miles away. However, it is not evident from the record whether the VA clinic would have been able to provide the type of medical services required to adequately treat the Veteran, such as obtaining a blood culture. The nearest VA facility that certainly was equipped to treat the Veteran was the VA Medical Center in Tampa, Florida. An online map shows that the VA Medical Center was 56 miles from Blake Medical Center. In viewing the evidence in the light most favorable to the Veteran, a VA facility was not feasibly available when the Veteran experienced her symptoms on May 5, 2017. The Board concludes that payment or reimbursement of the Veteran’s non-VA treatment provided by provided by Pyramid Peaks Emergency Physicians, LLC at Blake Medical Center on May 5, 2017 is warranted. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. Altendorfer, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.