Citation Nr: 21064991 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 17-00 379 DATE: October 22, 2021 ORDER Payment or reimbursement of medical expenses incurred for private treatment at Memorial Hospital Jackson (MHJ) on November 13, 2015 is granted. FINDING OF FACT 1. Payment or reimbursement of medical expenses incurred for private treatment at MHJ on November 13, 2015 was not pre-authorized by VA. 2. The non-VA care provided at MHJ on November 13, 2015 was for a condition of such nature whereby delay in obtaining the treatment would have been hazardous to life or health and a VA facility was not feasibly available. CONCLUSION OF LAW Resolving doubt in favor of the Veteran, the criteria for payment or reimbursement of the medical expenses incurred at MHJ on November 13, 2015 are met. 38 U.S.C. §§ 1703, 1728, 5107; 38 C.F.R. §§ 17.52, 17.120. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1963 to November 1970. This matter comes before the Board of Veteran' Appeals (Board) on appeal from an administrative decision issued by the Department of Veteran's Affairs (VA) Malcolm Randall VA Medical Center (MRVAMC), Gainesville, Florida. In October 2021, the Veteran testified at a Travel Board Hearing before the undersigned Veterans Law Judge. In an October 2016 Statement of the Case, Veterans Health Administration (VHA) noted that the Veteran is pursuing payment or reimbursement of medical expenses from MHJ Emergency Room and MHJ Radiology in the amount of $14,653.00. In rendering the decision below, the Board reviewed the VHA paper claims file and the relevant electronic records maintained in the Veterans Benefits Management System (VBMS) and Virtual VA (VVA) databases. Medical Reimbursement Claims VA is authorized to reimburse veterans for emergency medical treatment under 38 U.S.C. § 1725 and 38 U.S.C. § 1728. To be eligible for reimbursement under 38 U.S.C. § 1728, the treatment must have been associated with a service-connected disability or the veteran must have been in receipt of a total disability rating due to unemployability or have been a participant in a vocational rehabilitation program. 38 U.S.C. § 1728 (a); 38 C.F.R. § 17.120. Service connection is currently in effect for bilateral defective hearing and tinnitus. He has a combined 20 percent rating from August 2014 to the present. As an initial matter, the evidence reveals that the November 13, 2015 emergency treatment at issue did not involve any of the Veteran's service-connected disabilities. Likewise, the Veteran did not have a combined 100 percent disability rating when he sought emergency medical treatment on November 13, 2015. Thus, the Veteran does not meet the criteria for payment of authorized or unauthorized medical expenses incurred on July 21, 2012 under 38 U.S.C. § 1728; accordingly, the claim for payment must be considered under criteria for determining entitlement under the Veterans Millennium Healthcare and Benefits Act (Act), 38 U.S.C. § 1725; 38 C.F.R. §§ 17.1000-17.1008. To be eligible for reimbursement under 38 U.S.C. § 1725, a veteran must have satisfied all the following conditions: (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 has no coverage under a health-plan contract for payment or reimbursement 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; and (h) The veteran is not eligible for reimbursement under 38 U.S.C. § 1728 for the emergency treatment provided. See 38 C.F.R. § 17.1002. In this case, the evidence shows that the Veteran began having symptoms of headache (HA), and mild dizziness coupled with abdominal pain. He began experiencing symptoms after a large meal four days prior and while the abdominal pain began to subside his HA and dizziness continued. Upon contacting the VA, he stated that two nurses instructed him to go to an emergency room. As there was no VA hospital in his area, he went to MHJ. Medical records from the visit show that he was admitted to the emergency room with symptoms of an aching pressure HA and mild dizziness with changes in his position. A computerized tomography (CT) scan of the brain showed no acute infarct or hemorrhage; neurological examination was normal. An electrocardiogram (ECG) showed marked sinus bradycardia with first degree atrioventricular (AV) block. He was prescribed a narcotic medication for HA pain and instructed to return if his symptoms worsened or felt different, or if he began to have stiffness in his neck, nausea, confusion, drowsiness, memory loss, dizziness, or trouble walking. He was discharged the same day. Following a review of the record, applicable law and regulations, there is no dispute that the Veteran satisfies the requirements set out at 38 C.F.R. § 17.002 (a) and (d)-(h), outlined above; thus, the Board will not address these criteria. The question here, in terms of eligibility under 38 U.S.C. § 1725, is whether his treatment at MHJ was emergent, and whether a VA or other Federal facility/provider was feasibly available to provide treatment. 38 C.F.R. § 17.002 (b)-(c). As to these matters, the Board finds that the evidence demonstrates that medical care rendered on November 13, 2015 was for a medical emergency and a VA facility was not feasibly available to the Veteran on that date. In light of the treatment records, which indicate that the Veteran had acute HA with dizziness requiring immediate attention, and in light of the testimony indicating that his symptoms were such that he was instructed to go to an emergency room, the Board is persuaded that a prudent layperson in his position would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to his health. The Board is also persuaded that a VA or other Federal facility/provider that VA has an agreement with to furnish health care services for veterans was not feasibly available for the Veteran's care and that an attempt to use them beforehand would not have been considered reasonable by a prudent layperson. The closest VA hospital is approximately 101 miles from his residence; MHJ is only about 16.8 miles away. The Veteran asserts that, due to the severity of his symptoms, he was instructed not to ride in a car for the length of time required to seek treatment at the Gainesville VAMC. Resolving doubt in favor of the Veteran, VA facilities were not feasibly available on November 13, 2015. For these reasons, the Board finds the criteria for payment or reimbursement of medical expenses incurred in connection with care at MHJ on November 13, 2015 have been satisfied. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McKenzie, 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.