Citation Nr: 20007429 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 15-39 011A DATE: January 29, 2020 ORDER Entitlement to payment or reimbursement of unauthorized medical expenses incurred during non-VA medical services at Seven Rivers Regional Medical Center on November 17, 2014, is denied. FINDING OF FACT The non-VA medical care provided was not authorized by VA, the medical event 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 Seven Rivers Regional Medical Center on November 17, 2014 are not met. 38 U.S.C. §§ 1703, 1725; 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 August 1984 to June 1987. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 administrative decision issued by the Department of Veterans Affairs Medical Center (VAMC). The Veteran was scheduled for a November 2018 Board hearing in accordance with his request. However, the Veteran did not appear. As such, the Veteran’s hearing request is withdrawn. 38 C.F.R. § 20.704 (d). In October 2018, the Veteran was provided with information on how to obtain a representative. To date, the Veteran has not designated an individual or Veterans Service Organization as his representative. Therefore, the Board recognizes the Veteran as proceeding pro se in this appeal. The Board notes that, in the Veteran’s June 2015 Notice of Disagreement, he reported that he had a colonoscopy done in December 2014 and he had an endoscopy in January 2015. He continued going to Citrus Endoscopy Center and he had a second endoscopy in August 2015. He further reported that he went to Citrus Memorial Hospital in June 2015 and had an ultrasound and biopsy of his tumor. The Veteran contends that VA is responsible for all of his non-VA healthcare bills. However, such claims have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b). Entitlement to payment or reimbursement of unauthorized medical expenses incurred during non-VA medical services at Seven Rivers Regional Medical Center on November 17, 2014. When VA facilities are not capable of furnishing required care or services, VA may contract with non-VA facilities in order to furnish certain care, including hospital care or medical services for the treatment of medical emergencies that pose a serious threat to the life or health of a Veteran receiving medical services in a VA facility, until such time following the furnishing of care in the non-VA facility as the Veteran can be safely transferred to a VA facility. 38 U.S.C. § 1703 (a)(3); 38 C.F.R. § 17.5. The admission of a Veteran to a non-VA hospital at the expense of VA must be authorized in advance. 38 C.F.R. § 17.54. In relevant part, 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. In this regard, the Board acknowledges the Veteran’s assertions that he called the VA to report his symptoms and he was told to go to the local emergency room. He further stated that he was told that VA would cover his bill. Following the medical advice provided by VA, he went to the emergency room at the Seven Rivers Regional Medical Center. However, the advice of a medical provider to go to a non-VA hospital is not the specific type of authorization contemplated in the VA regulation. Smith v. Derwinski, 2 Vet. App. 378, 379 (1992). Additionally, there is no other evidence of record to otherwise suggest that the Veteran’s treatment at Seven Rivers Regional Medical Center on November 17, 2014 was authorized in advance. 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. 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 evidence does not show, and the Veteran does not contend that his emergent condition on November 17, 2014, was due to a service-connected disability, or that it was due to a nonservice-connected disability associated with and held to be aggravating a service-connected disability. At the time of this treatment, the Veteran did not have a total disability permanent in nature from a service-connected disability. Further, the treatment at issue 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. See 38 C.F.R. § 17.120. VA payment or reimbursement for private emergency medical treatment may also be considered under 38 U.S.C. § 1725. There are three primary requirements for payment or reimbursement under this statute. The Veteran must be treated at an emergency department or similar facility held out as providing emergency treatment to the public. The treatment received must be 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 is met if there is 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 serious dysfunction of any bodily organ or part. Additionally, a VA or federal facility must not be feasibly available to provide the treatment. 38 C.F.R. § 17.1002 (a-c). All of these criteria must be met for VA to grant payment or reimbursement for private emergency treatment under 38 U.S.C. § 1725. 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 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 this case, the evidence shows that on November 17, 2014, the Veteran contacted VA and reported that he had pain all over his body. He further reported that he was weak, nauseated, and had pain all over for the last day. He stated that he felt that way all the time, but something was wrong on that day. He stated that he took hydrocodone, but the pain was not relieved. Additionally, the Veteran reported that he was currently at the Seven Rivers Regional Medical Center emergency room for treatment and he was advised that a non-VA care note would be placed for possible assistance with payment. While at the Seven Rivers Regional Medical Center emergency room, the Veteran reported pain all over his body. He further reported that he had been seen for the same problem at the VA. The emergency room physician noted that the Veteran’s symptoms began 6 months prior to his visit. It was also noted that his symptoms were moderate in the emergency room and he experienced similar episodes in the past, which were chronic. The Veteran was diagnosed with chronic pain with of an unknown etiology, he was discharged and proscribed medication. The Board finds that there is no indication from the record that the pain was severe in nature or that it had worsened at the time he reported to the emergency room. To the contrary, when seen at the emergency room, the physician noted that his severity was moderate. The Veteran was treated and discharged to home. In such a situation, the Board finds that a prudent layperson would not have reasonably expected that delay in seeking immediate medical attention would have been hazardous to his or her life or health. The Board also points out that the Veteran, by his own account, stated that he was instructed by VA to go to the local emergency room and he would not have done so without such instruction because of his lack of insurance. See June 2015 Notice of Disagreement. Thus, 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 his life and health at the time of his treatment at the Seven Rivers Regional Medical Center on November 17, 2014. The Board acknowledges the Veteran reports that he called the VA to report his symptoms and he was told to go to the local emergency room. He further stated that he was told that his emergency room bill would be paid. As previously noted, the advice of a medical provider to go to a non-VA hospital is not the specific type of authorization contemplated in the VA regulation. Smith, supra. Additionally, while the Veteran asserts having received information from a VA employee, this also would not provide an exception to VA regulations. See Morris v. Derwinski, 1 Vet. App. 260 (1991), citing Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384-85 (1947) (noting that the United States Supreme Court has recognized that persons dealing with the United States Government are charged with knowledge of federal statutes and lawfully promulgated agency regulations, regardless of actual knowledge or hardship resulting from innocent ignorance). Further, “[e]rroneous advice given by a government employee cannot be used to estop the government from denying benefits.” McTighe v. Brown, 7 Vet. App. 29, 30 (1994) (citing OPM v. Richmond, 496 U.S. 414 (1990)). Additionally, VA facilities were feasibly available to the Veteran as he stated that he would not have gone to the emergency room if not medically advised to do so. Moreover, he reported an onset of symptoms more than 6 months ago. Therefore, as 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 at Seven Rivers Regional Medical Center on November 17, 2014. 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.