Citation Nr: 21067199 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 16-49 105 DATE: November 3, 2021 ORDER Entitlement to payment or reimbursement of unauthorized non-VA medical expenses for emergency treatment provided by Physicians Regional Medical Center Collier (PRMCC) on August 11, 2015 is granted. FINDING OF FACT On August 11, 2015, the Veteran sought emergency treatment received services provided at PRMCC; the Veteran's symptoms at the time he sought such treatment were such that a prudent layperson would have reasonably viewed the visit as an emergency or thought that a delay in seeking immediate attention would have been hazardous to life or health, and VA treatment facilities were not reasonably available for treatment at the time. CONCLUSION OF LAW The criteria for payment or reimbursement for the cost of medical expenses for non-VA emergency medical services on August 11, 2015 have been met. 38 U.S.C. §§ 1725, 1728; 38 C.F.R. §§ 17.120, 17.121, 17.1000-1002. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the Army from September 1969 to March 1972. The issue is on appeal from an April 2016 denial notification letter by the Bay Pines VA Medical Center (VAMC) in Bay Pines, Florida. In July 2021, the Veteran testified in a hearing before the undersigned. Payment or reimbursement of unauthorized non-VA medical expenses incurred on August 11, 2015, at PRMCC The Veteran seeks payment or reimbursement for the cost of medical expenses incurred for emergency treatment by PRMCC on August 11, 2015. 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, in this case, the Veteran has never contended, and the evidence does not demonstrate, that he received prior VA written authorization for his emergency treatment on August 11, 2015. Therefore, 38 U.S.C. § 1703(a) is not applicable in this case. To receive payment or reimbursement under 38 U.S.C. § 1728 for the expenses of emergency treatment, not previously authorized, in a private or public (or Federal) hospital not operated by VA, the following three conditions must be satisfied: The treatment was for an adjudicated service-connected disability, or for any disability when the veteran has a total disability permanent in nature resulting from a service-connected disability; and 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 VA or other Federal facilities that VA has an agreement with to furnish health care services for veterans 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(a); 38 C.F.R. § 17.120. The standard for finding that services were rendered in a "medical emergency" under 38 U.S.C. § 1728 is the same as that defined in 38 U.S.C. § 1725. Therefore, the claim for payment or reimbursement for initial evaluation and treatment 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 his life or health. This standard would be met if a situation involved 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. 38 C.F.R. § 17.1002(b). Service connection is in effect for mood and pain disorder at 100 percent disabling, left knee replacement at 60 percent disabling, and residuals of left elbow fracture and chronic left elbow strain at 20 percent disabling. Since the combined rating is 100 percent, the criterion regarding the disability being treated being service-connected or a total disability rating being in effect has been met. See 38 U.S.C. § 1728; 38 C.F.R. § 17.120. PRMCC treatment reports show that the Veteran was admitted to the emergency room at 5:31 a.m. for neck pain after lifting up a motorcycle a few days prior. The Veteran had a history of a neck graft and thought that he had broken his neck due to the intensity of the pain. The Veteran was administered a shot of Toradol. As the Toradol was not effective in pain reduction, the ER physician ordered a shot of Dilaudid, which finally decreased the Veteran's pain. The Board notes that the attending nurse and physician observed the Veteran was not in acute distress during his time in the emergency room. A CT scan showed severe left and moderate right neuroforaminal narrowing at his C6-7 and the Veteran was told to seek follow-up treatment with a neurosurgeon. VA medical records demonstrate that the Veteran sought and continued treatment with a neurosurgeon for cervical spine stenosis. In a September 2016 follow-up, the Veteran discussed the motorcycle lifting incident and subsequent ER trip where he explained that he thought his pain was exacerbated by using a TENS unit on too high of a setting. In his July 2021 hearing, the Veteran clarified that his neck pain did not begin immediately after lifting the motorcycle. Rather, the motorcycle incident occurred a few days before he began to experience any symptoms. Due to his neck graft, the Veteran was accustomed to feeling neck stiffness and applied a heat/cold pack the night of August 10, 2015 (the night prior to his emergency room visit). As his neck stiffness morphed into neck pain, the Veteran subsequently took prescribed Tramadol. The pain worsened and so the Veteran used a TENS unit, putting it on a high level of pulsation. Ultimately, the high level of pulsation made his pain so great that he panicked and sought emergency treatment because he thought he had broken his neck. Resolving reasonable doubt in his favor, the Board finds that the Veteran's medical condition on August 11, 2015, was of such a nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention was hazardous to life or health. The PRMCC emergency room notes show that he required two shots of different painkillers to alleviate his pain even after he had taken a dose of Tramadol at home prior to his emergency room visit. Additionally, the Board finds the Veteran's lay reports are credible based on his consistent account of pain, lay statements regarding the TENS unit, and medical history which includes a neck graft. Regarding the feasible availability of a VA or other federal facility, it is undisputed that a VA facility was less than 15 miles away from the Veteran. However, based on the Veteran's credible lay statements, along with corroborating evidence from the emergency response team of the nature of the Veteran's pain and time of admission, VA facilities were not actually available to the Veteran as they were closed. Accordingly, based on the evidence of record in this case, payment or reimbursement of non-VA medical expenses incurred for emergency care on August 11, 2015 by PRMCC is warranted. See 38 U.S.C. §§ 1728; 38 C.F.R. §§ 17.52, 17.120, 17.121. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Lee 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.