Citation Nr: 21061814 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 15-18 586A DATE: October 5, 2021 ORDER Entitlement to payment or reimbursement for the cost of medical treatment received at Robert Packer Hospital from April 10, 2011 through April 12, 2011 is granted. FINDINGS OF FACT 1. The treatment received at Robert Packer Hospital from April 10, 2011 through April 12, 2011, was for a condition for which a prudent layperson would have believed that immediate medical attention was necessary to avoid hazard to health, and a VA facility was not feasibility available to provide the treatment. 2. Giving the benefit of the doubt to the Veteran, a claim for payment or reimbursement for the cost of medical treatment received at Robert Packer Hospital from April 10, 2011 through April 12, 2011 was submitted on April 29, 2011. CONCLUSION OF LAW The criteria for payment or reimbursement for the cost of medical services received at Robert Packer Hospital from April 10, 2011 through April 12, 2011 have been met. 38 U.S.C. § 1725; 38 C.F.R. § 17.1002. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from December 2001 to January 2010. The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in July 2018. A transcript is of record. Entitlement to payment or reimbursement for the cost of medical treatment received at Robert Packer Hospital from April 10, 2011 through April 12, 2011 Initially, under 38 U.S.C. § 1703, when VA facilities or other government facilities are not capable of furnishing economical hospital care or medical services because of geographic inaccessibility or are not capable of furnishing care or services required, VA may authorize or contract with non-VA facilities for care. 38 U.S.C. § 1703(a); 38 C.F.R. § 17.52(a). However, the Veteran has never contended, and the evidence does not demonstrate, that he received prior VA written authorization for his private treatment from April 10, 2011 through April 12, 2011. Therefore, application of 38 U.S.C. § 1703(a) for reimbursement of authorized private treatment is unwarranted. The issue of prior authorization is thus not applicable. The treatment from April 10, 2011 through April 12, 2011 was not for a service-connected disability or for a disability that was aggravating a service-connected disability, and the Veteran did not have a total and permanent service-connected disability rating effective as of the time of the treatment. Likewise, the treatment was not for any injury or an illness incurred in relation to participation in a vocational rehabilitation program. Consequently, the Veteran is not eligible for payment or reimbursement for the claimed emergency treatment under 38 U.S.C. § 1728. See 38 C.F.R. § 17.120. Payment or reimbursement for private emergency medical treatment may be considered under 38 U.S.C. § 1725. The primary requirements for payment or reimbursement under this statute are that the Veteran is treated in an emergency department or similar facility held out as providing emergency treatment to the public; the treatment received 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; and a VA or other federal facility was not feasibly available to provide the treatment. 38 C.F.R. § 17.1002(a-c). A condition that a prudent layperson would reasonably expect that delay in seeking medical attention would be hazardous to life or health can include one manifested by severe pain that results in serious dysfunction of a body part. 38 C.F.R. § 17.1002(b). The Veteran's former representative wrote in August 2014 and June 2015 that the Veteran was severely injured in a motorcycle accident on April 10, 2011 and received emergency medical treatment at Robert Packer Hospital. The Veteran testified at the July 2018 hearing that he was in a severe motorcycle accident on April 10, 2011. He asked the paramedics to take him to the Bath, New York VA Medical Center, and they said the injuries were too severe, so he was flown to Robert Packer Hospital instead. Billing records from Robert Packer Hospital show that the Veteran was treated in the emergency department and the intensive care unit. The Veteran's claim was denied for not being timely due to having not been filed within 90 days of the private treatment. VA treatment notes show that on April 12, 2011 the discharge summary from Robert Packer Hospital was received. An April 29, 2011 VA treatment note reveals that the Veteran reported having been in a serious motorcycle accident and being airlifted to Robert Packer Hospital. The Veteran sustained trauma to his head, right eye socket, and left hand. The VA provider wrote that she assisted the Veteran with requesting payment of his medical bills by VA. She informed the Veteran that he may not qualify but that he should apply anyways. The Veteran was also instructed to speak to a social worker at Robert Packer regarding not being able to pay the bill and to ask for assistance. The Veteran's former representative wrote in August 2014 that on April 29, 2011 a VA employee assisted the Veteran with requesting payment of his medical bills by VA. Furthermore, several people at the Bath VA Medical Center told that Veteran that VA would take care of his medical expenses. The Veteran testified at the July 2018 hearing that he thought, based on his April 29, 2011 conversation with a VA employee, that his claim for payment of the April 2011 private treatment was being taken care of. He therefore did not fill out any paperwork for it. The Veteran further testified that he was told he needed to submit a letter of exhaustion from his insurance, which he did. He only found out that he owed $50,000 for the private treatment when he got a copy of his credit report while trying to buy a house. He had never been billed for the treatment. The Veteran's mother wrote in July 2018 that in April 2011 an official at the Bath VA Medical Center told her that he would take care of everything after being told of the Veteran's motorcycle accident. Giving the benefit of the doubt to the Veteran, the Board finds that it was reasonable for him to interpret what he was told by a VA official on April 29, 2011 to mean that he did not have to take further action to submit a claim for payment or reimbursement of the private treatment at Robert Packer Hospital on April 10, 2011 through April 12, 2011. See 38 U.S.C. § 5107(b). Furthermore, the Veteran's mother's statement that a VA official said he would take care of everything further supports that it was reasonable for the Veteran to believe that he did not have to take further action to submit a claim. Therefore, the Board finds that the Veteran's claim was timely. The Veteran meets the requirement of 38 C.F.R. § 17.1002(a) that the treatment be provided in a hospital emergency department. The Veteran is also financially liable for the treatment. An April 2011 letter from the Veteran's motorcycle insurance carrier states that the maximum medical coverage benefit amount of $5,000 had been reached for the April 10, 2011 accident. A billing statement from Robert Packer Hospital shows that the Veteran owed $27,048.50 for the treatment from April 10, 2011 through April 12, 2011. See 38 C.F.R. § 17.1002(e). Regarding the potential feasible availability of a VA or other federal facility, the Veteran was told by paramedics that the VA medical center could not provide the needed treatment, and was airlifted to Robert Packer Hospital. An attempt to wait to be treated until he could get to the VA emergency room would not have been considered prudent by a layperson. See 38 C.F.R. § 17.1002(c). In addition, a prudent layperson who possessed an average knowledge of general health and medicine would reasonably have expected that the absence of immediate treatment in the aftermath of the motorcycle accident would have placed the health of the Veteran in serious jeopardy or caused serious impairment to bodily functions, given the symptomatology. See 38 C.F.R. § 17.1002(b). Finally, there is no indication that the Veteran does not meet the additional criteria for reimbursement for emergency treatment under 38 U.S.C. § 1725, nor has the VAMC made any such finding. See 38 C.F.R. § 17.1002(d), (f)-(h). VA treatment records show that the Veteran was enrolled in the VA health care system and had been treated within the 24 month period prior to April 10, 2011. See 38 C.F.R. § 17.1002(d). In addition, the Veteran did not have other health insurance that would fully pay for the April 10, 2011 through April 12, 2012 treatment, the condition was not caused by a workplace accident, and coverage is not available under 38 U.S.C. § 1728. See 17.1002(f)-(h). The Veteran's appeal is therefore granted, subject to the provisions governing the amount of payment or reimbursement that is available under 38 U.S.C. § 1725. 38 C.F.R. § 17.1005. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott Shoreman, 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.