Citation Nr: 21002299 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 16-53 211A DATE: January 13, 2021 ORDER Entitlement to payment or reimbursement for unauthorized medical expenses incurred on February 24, 2016 at Orange Park Medical Center is denied. FINDING OF FACT The Veteran received care on February 24, 2016 at Orange Park Medical Center that was not related to a service-connected disability; the treatment was not 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; VA facilities were feasibly available to treat the symptoms. CONCLUSION OF LAW The criteria for payment or reimbursement for unauthorized medical expenses incurred on February 24, 2016 at Orange Park Medical Center are not met. 38 U.S.C. §§ 1725, 1728; 38 C.F.R. §§ 17.1000-17.1008. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable service from June 1974 to September 1976 and March 1981 to February 1985. The Veteran also had service from May 1986 to May 1990 but received a bad conduct discharge for this period of service. In August 2019, the Veteran participated in a video conference hearing before the undersigned Veterans Law Judge (VLJ), a transcript of which is of record. Medical Reimbursement The Veteran is claiming entitlement to medical reimbursement for the costs of unauthorized non-VA emergency treatment provided to the Veteran on February 24, 2016 at Orange Park Medical Center for treatment of a non-service connected condition. VA has several authorities to pay or reimburse emergency treatment furnished by a non-VA medical facility. In this case, there is no indication in the record or assertions from the Veteran that prior authorization was given for his treatment. In the absence of prior authorization for medical services, there is no factual or legal basis for payment or reimbursement by VA under 38 U.S.C. § 1703 and 38 C.F.R. §§ 17.52, 17.53, and 17.54 for contracted medical services at a non-VA facility. Additionally, there is no medical evidence of record, nor assertion by the Veteran, that the emergency treatment was provided for an adjudicated service-connected disability, a disability aggravated by a service-connected disability, any disability of a veteran with permanent and total disability, or any disability of a veteran who is a participant in a vocational rehabilitation program and is determined to be in need of treatment to continue his training. Because the Veteran does not meet the criteria for payment of emergency medical expenses under 38 U.S.C. § 1728, the Veteran’s claim for reimbursement must be considered under 38 U.S.C. § 1725, as implemented at 38 C.F.R. §§ 17.1000-17.1008. Pursuant to 38 C.F.R. § 17.1002, VA may make payment or reimbursement of costs for emergency treatment for non-service-connected disabilities in non-VA facilities, but only if all the following criteria 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; (h) The veteran is not eligible for reimbursement under 38 U.S.C. § 1728 for the emergency treatment provided (38 U.S.C. § 1728 authorizes VA payment or reimbursement for emergency treatment to a limited group of veterans, primarily those who receive emergency treatment for a service-connected disability). 38 C.F.R. § 17.1002. In the instant case, a review of the record indicates there is at least one of the criteria that the Veteran does not satisfy. Thus, reimbursement under the provisions of 38 U.S.C. § 1725 and 38 C.F.R. § 17.1002 cannot be granted for the treatment received on February 24, 2016. In or around February 2016, the Veteran broke out in hives. The Veteran initially reported to his primary doctor at the Jacksonville VAMC for treatment. After examination, the Veteran was prescribed medications. The Veteran reported to the Gainesville VA Medical Center (VAMC) Emergency Room on February 12, 2016 due to recurrent rashes and lower lip swelling; he was instructed to continue over the counter Benadryl as needed, and to use betamethasone cream as needed, and to temporarily cease using Losartan. He was advised to return to the emergency room for any new or increased swelling. See February 16, 2016 VA treatment note. On February 24, 2016, the Veteran reported to the Orange Park Medical Center Emergency Department, where he reported a rash and swelling affecting his hands and lips; the Veteran denied shortness of breath, and denied his throat and tongue being swollen. The examination did not show any tongue swelling, and the symptoms were noted to be mild by the provider. The diagnosis was acute exacerbation of subacute recurrent allergic reaction/angioedema. The Veteran was prescribed dexamethasone sodium phosphate, 8 mg, and was discharged. See February 24, 2016 Orange Park Medical Center Treatment Record. On February 25, 2016, the Veteran called the VA nurse telephone line and reported that he had experienced a recurrence of red welts from his belt line to his pubic area, back of head and neck, upper lip and left ring finger on the prior night for which he sought treatment through the private emergency room. The Veteran reported his welts were gone after taking the prescribed medication. See February 25, 2015 VA Nursing Telephone Encounter Note. VA treatment records document continued reports and treatment concerning complaints of hives/welts after February 24, 2016. The Veteran has submitted bills in excess of $3,300 for reimbursement related to the February 24, 2016 private treatment. After review of all of the evidence, lay and medical, the Board finds that the weight of the evidence does not show Veteran had an emergency medical condition manifesting itself by acute symptoms of sufficient severity 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. At the hearing before the Board, the Veteran and the witness testified that the Veteran was fearful of his throat swelling up and that he could not risk driving the 60 miles to the VA emergency room due to this factor. See Hearing Transcript. The Board finds that this testimony is outweighed by the contemporaneous evidence which indicated that while the Veteran experienced symptoms of hives, right upper lip swelling and swelling in his hands in the evening prior to going to the emergency room, there is no indication of acute symptoms reported or noted related to throat or tongue swelling. Throat swelling is not noted in any treatment notes related to the incident, and the February 24, 2016 record noted the Veteran denied throat or tongue swelling. There was no report of trouble breathing. Additionally, the Veteran also notably did not report such symptoms during the February 25, 2016 telephone call with the VA nurse. The Board does not find the testimony presented at the hearing regarding his throat swelling to be credible and is outweighed by the contemporaneous reports made by the Veteran when treatment was sought. The evidence indicates that while the Veteran began to experience the reported symptoms on the evening of February 23rd, he did not go to the private emergency room until the next day and reported the same symptoms that had started the evening before. The record does not show a change in symptoms which led to the trip to the private emergency room and the record does not indicate throat swelling or trouble breathing was reported to have occurred either the evening before the trip to the emergency room or prior to going to the emergency room on February 24th. The Board finds that the record does not demonstrate that the Veteran had an emergency medical condition manifesting itself by acute symptoms of sufficient severity 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. As such, the treatment was not 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. As noted above, in addressing whether medical reimbursement is warranted, the Board must consider, inter alia, whether 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. 38 C.F.R. § 17.1002(c). After review, it is determined in this case that a VA facility was “feasibly available” to address the Veteran’s concern on February 24, 2016, as he had used such previously for the same condition. The symptoms of February 24, 2016 are not credibly shown to be of greater urgency than for which he previously sought treatment at the VA facility, and it is concluded the VA facility remained feasibly available for the Veteran for the treatment of this condition. Payment or reimbursement of private medical expenses incurred for treatment at Orange Park Medical Center Emergency Department on February 24, 2016 is not warranted. The preponderance of the evidence is against the claim, and there is no reasonable doubt to be resolved on the matter. 38 U.S.C. § 5107(b). K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. C. KING 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.