Citation Nr: 21061268 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 17-06 797 DATE: October 1, 2021 ORDER Entitlement to reimbursement of the cost of non-Department of Veterans Affairs (VA) care received at The Villages Regional Hospital on November 19, 2015 is granted. FINDINGS OF FACT 1. The Veteran has been in receipt of a total disability rating for service-connected bipolar disorder since February 2011 and the probability of permanent improvement under treatment is remote. 2. The November 19, 2015, treatment was furnished in response to a medical emergency; it was of such nature that a prudent layperson would reasonably expect that delay in seeking immediate medical attention would be hazardous to life or health. 3. VA or other federal facilities were not feasibly available; an attempt to use them beforehand or obtain prior VA authorization for the services required would not have been reasonable and treatment had been refused. CONCLUSION OF LAW The criteria for reimbursement for unauthorized emergency treatment provided at The Villages Regional Hospital on November 19, 2015 are met. 38 U.S.C. §§ 5107, 1725, 1728; 38 C.F.R. §§ 17.120-17.132, 17.1002. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from May 1978 to June 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2016 VA Agency of Original Jurisdiction (AOJ) administrative decision. The Veteran testified before the undersigned in September 2021. The Veteran seeks reimbursement of medical expenses incurred for care provided by The Villages Regional Hospital on November 19, 2015. Initially, the Board notes that the record does not reflect that the Veteran received prior VA authorization for this treatment; therefore, 38 U.S.C. § 1703(a) does not apply in this case. Instead, at issue is whether the November 19, 2015 care constituted emergency treatment. 38 U.S.C. § 1725(f)(1)(A)-(B) (emergency treatment is defined as medical care or services furnished when VA or other Federal facilities are not feasibly available, and the medical emergency was of such nature that a prudent layperson reasonably expects that delay in seeking medical attention would be hazardous to life or health). The Veteran asserts that he first sought treatment by VA, but was advised to seek emergency non-VA care because he presented with symptoms of a heart attack. See August 2016 VA Form 9. As explained below, the Board reviews this claim under 38 U.S.C. § 1728 for reimbursement of non-VA emergency care. See 38 C.F.R. § 17.1002(h) (veterans are not eligible for reimbursement under section 1725 if they meet eligibility requirements under 1728). If a veteran has a total disability, permanent in nature from a service-connected disability, VA shall reimburse emergency treatment for any disability. 38 U.S.C. § 1728(a)(3); see 38 C.F.R. § 3.340(b) (permanence of total disability exists when such impairment is reasonably certain to continue throughout life, to include long standing diseases which are actually totally incapacitating when the probability of permanent improvement under treatment is remote). Here, reimbursement for the cost of the non-VA care received at The Villages Regional Hospital on November 19, 2015 is warranted. 38 C.F.R. § 17.120 (a timely filed claim will be paid when the following circumstances are met: (a) the veteran has a qualifying service-connected disability; (b) care was provided in a medical emergency; (3) federal facilities are unavailable). The Board notes that there is no dispute that the claim was timely filed within two years of the November 2015 episode of care. 38 C.F.R. § 17.126. With regard to the eligibility criteria in 38 C.F.R. § 17.120(a), the record reflects that the Veteran has been in receipt of a total disability rating for service-connected bipolar disorder effective February 2011. See July 2011 Rating Decision. This 100 percent rating is based on a June 2011 VA examination report that explained the Veteran was unemployable due to bipolar disorder and that he exhibited a range of moderate to severe symptomatology despite medication and psychiatric treatment. 38 C.F.R. § 3.340(b). There is no evidence in conflict with the above. Therefore, the Board finds the criteria for a veteran with a qualifying service-connected disability as outlined in 38 U.S.C. § 1728(a)(3) are met. Further, the record reflects that the November 19, 2015 care was provided in a medical emergency and VA or other federal facilities were unavailable. 38 U.S.C. § 1725(f)(1)(A), (B); 38 C.F.R. § 17.120(b), (c). The Veteran reported that he discussed his symptoms with a VA triage nurse and was told that he may be experiencing symptoms of a heart attack. He also reported that the VA nurse refused care and advised him to seek emergency medical treatment. See Layno v. Brown, 6 Vet. App. 465, 471 (1994) (the Veteran is competent to report what he observed, such as statements from a VA medical practitioner). The Board finds the Veteran's statements to be credible, as they are consistent with a November 19, 2015 VA treatment record documenting a telephone call between the Veteran and a VA nurse. The nurse reviewed the Veteran's reports of left arm pain and sweating, advised him that he could have a problem with the heart, and specifically stated that he needed to seek care immediately with the nearest emergency room. The Board finds a prudent layperson would have reasonably relied on the advice of the VA nurse and expected that a delay in seeking immediate medical attention would have been hazardous. Further, the VA nurse's advice to seek care from the closest emergency room, coupled with the Veteran's credible testimony that The Villages Regional Hospital was the closest emergency medical facility to his home, supports a conclusion that no VA or federal facility was feasibly available and an attempt to use them beforehand or obtain prior VA authorization for the care would not have been reasonable. Finally, the Veteran attempted to use a VA facility but his request for treatment was refused. Thus, for reasons outlined above, the claim for reimbursement of the cost of unauthorized non-VA medical care incurred by the Veteran at The Villages Regional Hospital on November 19, 2015 is granted. 38 U.S.C. §§ 1728, 5107; 38 C.F.R. §§ 17.120-132. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Odya-Weis 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.