Citation Nr: 20007192 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 19-18 636 DATE: January 28, 2020 ORDER Entitlement to payment or reimbursement for unauthorized non-VA medical expenses incurred while receiving treatment at Lakeland Regional Medical Center (LRMC) on April 20, 2018, is denied. FINDING OF FACT The non-VA medical care provided was not of such a nature that delay would have been hazardous to the Veteran’s life or health and VA facilities were feasibly available to provide the non-emergent treatment. CONCLUSION OF LAW The criteria for payment or reimbursement for unauthorized medical expenses incurred at LRMC on April 20, 2018 are not met. 38 U.S.C. §§ 1703, 1728; 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120, 17.121. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1977 to August 1983. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2018 administrative decision issued by the Department of Veterans Affairs Medical Center (VAMC). Entitlement to payment or reimbursement for unauthorized non-VA medical expenses incurred while receiving treatment at LRMC on April 20, 2018. 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 she received was authorized in advance. See 38 U.S.C. § 1703; 38 C.F.R. § 17.52. However, when 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 evidence shows that the Veteran’s treatment at LRMC on April 20, 2018 was, in part, due to her service-connected asthma. Therefore, 38 U.S.C. § 1728, rather than 38 U.S.C. § 1725, applies. In part, under 38 U.S.C. § 1728, in order to be entitled to payment or reimbursement of medical expenses incurred at a non-VA facility, there must be a showing that three criteria are met: (a) the care and services rendered were either: (1) for an adjudicated service-connected disability, (2) for a nonservice-connected disability associated with and held to be aggravating an adjudicated service-connected disability, (3) for any disability of a Veteran who has a total disability, permanent in nature, resulting from a service-connected disability, or (4) for any injury, illness, or dental condition in the case of a Veteran who is participating in a rehabilitation program and who is medically determined to be in need of hospital care or medical services for reasons set forth in 38 C.F.R. § 17.47 (i) (formerly § 17.48(j) (2000)); and (b) the treatment was for a medical emergency of such nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health; and (c) VA or other Federal facilities were not feasibly available and an attempt to use them beforehand or obtain prior authorization for the services required would not have been reasonable, sound, wise, or practicable, or treatment had been or would have been refused. 38 U.S.C. § 1728; 38 C.F.R. § 17.120. The existence of a VA facility located in the same city as the non-VA medical facility does not in and of itself mean that the VA facility was feasibly available. Cotton v. Brown, 7 Vet. App. 325, 327 (1995). Rather, the determination of whether a VA facility was “feasibly available” must be made after consideration of such factors as the urgent nature of the Veteran’s medical condition and the length of any delay that would have been required to obtain treatment from a VA facility. Id. at 327-28. The above-stated provisions are conjunctive, not disjunctive. Malone v. Gober, 10 Vet. App. 539 (1997) (finding that all three eligibility requirements under 38 U.S.C. § 1728 must be met). As noted above, the Veteran’s treatment at the LRMC on April 20, 2018 was, in part, due to her service-connected asthma. The ultimate disposition of this case, therefore, rests upon whether the Veteran was treated for an emergency condition and whether federal facilities were feasibly available. Both medical and lay evidence may be considered in a prudent layperson evaluation for determining what constitutes a “medical emergency.” That is, VA should weigh “the totality of the circumstances” to determine whether a prudent layperson would consider the situation emergent. Swinney v. Shinseki, 23 Vet. App. 257, 264-266 (2009). In the Veteran’s March 2019 notice of disagreement and May 2019 substantive appeal, she contends that she went to the LRMC Emergency Room (ER) because she was having problems breathing, which was 10 days after the problems began, and she suffered massive coughing. She further stated that her asthma started to kick in and became out of control, which she treated with a steroid and emergency inhaler. However, she also reported that, on the third day, she was unable to control it. The Veteran stated that she was unable to drive or find anyone to transport her to the Tampa VA and she felt as though every breath was her last. Therefore, she went to the local ER rather than Tampa VA, which was over an hour away. On April 20, 2018, the Veteran presented to the ER with complaints of coughing, congestion, and mild shortness of breath for a week. The ER physician noted that the Veteran symptoms were moderate, and her risk factors were asthma, hypertension, and Chronic Obstructive Pulmonary Disease (COPD). The Veteran reported her history of asthma, but stated that her bronchodilator medications did not help her cough. The ER physician noted that the Veteran had an abnormal chest X-ray and she was sent to the main ER for further evaluation. Upon evaluation, her chest X-ray demonstrated large mass versus infiltrate in the right lower thorax, which was likely a diaphragmatic hernia with a mass effect on the right atrium and ventricle. It was noted that the X-ray findings were incidental, and the ER physicians did not think the findings were acute or emergent at the time. The Veteran was discharged home with prescriptions for her acute COPD exacerbation and likely acute bronchitis. The above summarized evidence shows that the Veteran had been suffering from coughing, congestion, and mild shortness of breath for over a week. There is no indication from the record that her symptoms were severe in nature or had worsened at the times she reported to the ER. The Veteran also stated that her symptoms worsened, and she did not believe she would make it to Tampa VA without requiring CPR or being pronounced dead. However, when seen at the ER, the ER physician noted that the Veteran’s symptoms were moderate. It was also noted that ER physicians did not think the X-ray findings were acute or emergent at the time. Findings on physical examination were normal as well. In such a situation, the Board finds that an individual with an average knowledge of health and medicine would not have reasonably expected that an absence of immediate medical attention would result in placing one’s health in serious jeopardy, serious impairment to bodily functions or serious dysfunction of any bodily organ or part. Consequently, the Board finds that the Veteran is not shown to have been suffering from an emergency medical condition so as to pose a serious threat to her life and health at the time of her treatment at the LRMC ER. Furthermore, VA facilities were feasibly available to the Veteran. In this regard, as noted in the Veteran’s May 2019 substantive appeal, she contacted her primary care physician in Lakeland, but she was unable to get an appointment. She further stated that she intended to go to Tampa VA at the first availability of transportation, but public transportation was not an option due to scheduling requirements. She also reported that she was unable to drive due to her uncontrollable seizures. In May 2019, the Veteran’s sister and mother also submitted statements discussing the severity of her symptoms and how they were unable to transport her to the Tampa VA. As indicated above, the determination of whether a VA facility was “feasibly available” must be made after consideration of such factors as the urgent nature of the Veteran’s medical condition and the length of any delay that would have been required to obtain treatment from a VA facility. Cotton, supra. The Board notes the Veteran’s contention that her symptoms worsened, and she did not believe she would make it to Tampa VA without requiring CPR or being pronounced dead. The Board further notes the contentions in the December 2019 Appellant’s Brief. However, as stated above, when seen at the ER, the ER physician noted that the Veteran’s symptoms were moderate, and the X-ray findings were not acute or emergent at the time. Additionally, examination findings were essentially normal. The Veteran was prescribed medication and discharged. The Veteran’s difficulties with obtaining transportation does not necessarily mean that a VA facility was not feasibly available. Because a VA facility was feasible, payment or reimbursement of medical expenses pursuant to 38 U.S.C. § 1728 must be denied. The Board is sympathetic to the Veteran’s claim. However, the Board is bound by all applicable law and regulation. After carefully reviewing the Veteran’s statements and the medical evidence of record, the Board finds that the preponderance of the evidence is against the claim of entitlement to payment or reimbursement of unauthorized medical expenses incurred on April 20, 2018 at the LRMC ER. The appeal is denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brennae L. Brooks, 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.