Citation Nr: 21002831 Decision Date: 01/15/21 Archive Date: 01/15/21 DOCKET NO. 16-55 472 DATE: January 15, 2021 ORDER Entitlement to payment or reimbursement for unauthorized non-VA medical expenses incurred for treatment by St. Mary’s Medical Center, Paragon Contracting Services, Inc., and City of Palm Beach Gardens on July 9, 2014 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. CONCLUSION OF LAW The criteria for payment or reimbursement for unauthorized medical expenses incurred for treatment by St. Mary’s Medical Center, Paragon Contracting Services, Inc., and City of Palm Beach Gardens on July 9, 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 served on active duty from November 1979 to November 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 administrative decision of the Department of Veterans Affairs Medical Center (VAMC). In January 2019, the Board remanded the case for additional development and it now returns for appellate review. To date, the Veteran has not designated an individual or Veterans Service Organization as her representative. Therefore, the Board recognizes the Veteran as proceeding pro se in this appeal. Entitlement to payment or reimbursement for unauthorized non-VA medical expenses incurred for treatment by St. Mary’s Medical Center, Paragon Contracting Services, Inc., and City of Palm Beach Gardens on July 9, 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 was taken to St. Mary’s hospital due to dehydration. He reports that his brother told the emergency medical technicians to take him to a VA hospital because he was a patient there and that is where he received monthly blood work. He notes that, while riding in the rescue truck, the emergency medical technician called the VA and they refused to take him. See September 2014 notice of disagreement. He contends that the emergency medical technicians were advised to take him to the nearest hospital. In this regard, the City of Palm Beach Gardens’ paramedics contacted the West Palm Beach VA Medical Center on July 9, 2014 and that the VA was on diversion that evening and not accepting new patients. See October 2016 statement of the case. However, the above assertions are not the specific type of authorization contemplated in the VA regulation. Smith v. Derwinski, 2 Vet. App. 378, 379 (1992). There is no evidence of record to otherwise suggest that the Veteran’s treatment on July 9, 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 July 9, 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 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 Veteran does not meet the criteria for reimbursement under 38 U.S.C. § 1725 because the preponderance of the evidence indicates that services were not rendered in a medical emergency setting of such nature that delay would have been hazardous to life or health, and a prudent layperson in the Veteran’s position would not have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. 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 Veteran contends that his condition constituted a medical emergency as he was in severe pain, dehydrated, and very scared. See October 2016 statement submitted with VA Form 9. On July 9, 2014, the Veteran presented to the emergency room (ER) via ambulance with complaints of syncope. He reported that he experienced syncope and collapsed. The Veteran also stated that the episode occurred at home and it was witnessed by a friend while he was drinking alcohol. The Veteran indicated that he experienced dizziness just prior to the episode and he did not suffer any apparent associated injury. The ER physician noted that the Veteran was not experiencing any symptoms and he felt back to his baseline. It was further noted that the Veteran had not experienced similar symptoms in the past. The Veteran stated that he was stressed, could not find a job, and was drinking. The Veteran’s condition was noted as stable, but he left the emergency room against medical advice. In this regard, the Veteran signed a medical release form, which stated that his complaint or diagnosis was syncope and ETOH intoxication. On the form, the Veteran stated that he was leaving the hospital because he wanted to leave. In contrast to the Veteran’s assertions, the above summarized evidence shows that there is no indication from the record that his symptoms were severe in nature or had worsened at the time he reported to the ER. In this regard, it was noted that the Veteran was not experiencing any symptoms and he felt back to his baseline. It was also noted that the Veteran had slurred speech, but he denied shortness of breath, a cough, pain, blurred vision, dizziness, and headaches. Moreover, the Veteran’s condition was noted as stable and he left the ER against medical advice because he wanted to leave. 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 his life and health at the time of his treatment on July 9, 2014. 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 for treatment on July 9, 2014. (Continued on the next page)   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.