Citation Nr: 21069622 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 16-35 354A DATE: November 19, 2021 ORDER Entitlement to payment or reimbursement for the cost of medical treatment received at Memorial Hospital Jacksonville (MHJ) in Jacksonville, Florida, on June 24, 2015 is granted, subject to the laws and regulations governing the payment of VA monetary benefits. FINDING OF FACT The treatment received at the MHJ emergency room on June 24, 2015 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. CONCLUSION OF LAW The criteria for payment or reimbursement for the cost of medical treatment received at MHJ on June 24, 2015 have been met. 38 U.S.C. § 1725; 38 C.F.R. § 17.1002. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1970 to December 1971. The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in July 2021. A transcript of that hearing is of record. Entitlement to payment or reimbursement for the cost of medical services received at MHJ on June 24, 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, the Veteran has never contended, and the evidence does not demonstrate, that he received prior VA written authorization for his private treatment on June 24, 2015. In fact, the Veteran acknowledges that he contacted VA after he began experiencing acute distress in his eyes and that he called the 24-hour VA after hours care and spoke with the nurse on duty. He further acknowledges that the nurse asked him a series of questions and that, at the end of the conversation, she stated, "I cannot tell you to go to the emergency room, but if it were me, that is what I would do." A VA call log entry from June 24, 2015 confirms that the nurse read the Veteran the following disclaimer: "This is not an authorization for VA payment" and also "To have [the] hospital contact the nearest VA facility for transfer upon stabilization." In any event, there is no indication in the record that the Veteran received prior authorization to obtain treatment at MHJ on June 24, 2015, and the 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. Additionally, at the time of the June 2015 treatment, service connection was in effect for diabetic nephropathy (rated 60 percent disabling); coronary artery disease (rated 30 percent disabling); diabetes mellitus type II (rated 20 percent disabling); right lower extremity peripheral neuropathy (rated 20 percent disabling); left lower extremity peripheral neuropathy (rated 20 percent disabling); amputation of the second and fifth toes of the left foot (rated 20 percent disabling); right upper extremity peripheral neuropathy (rated 20 percent disabling); left upper extremity peripheral neuropathy (rated 20 percent disabling); hypertension (rated 10 percent disabling); residuals of a left ankle bimalleolar fracture with intraosseous ossification and limitation of motion (rated 10 percent disabling); bilateral diabetic retinopathy (rated 10 percent disabling); erectile dysfunction (rated 0 percent disabling); a post-coronary artery bypass graft scar (rated 0 percent disabling); and a left foot third toe ulcer (rated 0 percent disabling). He had a 100 percent combined disability rating. However, this treatment was not for a service-connected disability or for a disability that was aggravating a service-connected disability. By the Veteran's own admission, he sought treatment for pain and a stinging sensation in his eyes. See November 2015 notice of disagreement (NOD). While he has a service-connected eye disability (i.e., diabetic retinopathy), the June 2015 treatment was not for symptoms associated with diabetic retinopathy nor is there a clear indication in the record that the Veteran's symptoms were found to be aggravating his service-connected diabetic retinopathy. 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. Notwithstanding the foregoing, the Board notes that 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). According to the Veteran, he was watching television around 8:30pm on June 24, 2015 and his left eye started to water, which impeded his ability to watch television. As time wore on, the salinity increased exponentially, and he began experiencing a stinging or painful sensation in his left eye. Given his history with diabetic retinopathy and the severity of the pain, the Veteran felt that he needed to seek emergency medical care for fear that his symptoms could result in vision loss. See November 2015 NOD; July 2021 Board hearing transcript. The Veteran's private treatment records confirm that on June 24, 2015, he presented to the MHJ emergency department with complaints of irritation, itching, and redness affecting his left eye. He reported experiencing a burning sensation and pain behind his left eye. He was treated with medicated eye drops and the pain eventually subsided. He was diagnosed as having conjunctivitis (pink eye) and discharged home on the same day. See June 24, 2015 MHJ Private Treatment Report. The Veteran meets the requirement of 38 C.F.R. § 17.1002(a) that the June 24, 2015 treatment be provided in a hospital emergency department. The Veteran is also financially liable for the treatment. See 38 C.F.R. § 17.1002(e). Regarding the potential feasible availability of a VA or other federal facility, per Google Maps (viewed on November 10, 2021), the VA emergency room in Gainesville, Florida, is approximately 80 to 95 miles from where the Veteran lives. MHJ is approximately 9 miles away. Given that the Veteran was "advised" by a VA nurse over the phone on June 24, 2015 to go to a local emergency room because of the symptoms that he was experiencing, 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 for the worsening pain would have placed the health of the Veteran in serious jeopardy or caused serious impairment to bodily functions. See 38 C.F.R. § 17.1002(b). At his July 2021 Board hearing, the Veteran credibly testified that he was terrified of losing his vision and that he was concerned that the pain he was experiencing was somehow related to his service-connected diabetic retinopathy. Thus, even though the actual treatment he received was only for "pink eye," it is understandable that the Veteran, given his past experience with a service-connected eye disability, would be afraid that his left eye symptoms were indicative of the onset of serious impairment to his vision. 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 months prior to June 24, 2015. See 38 C.F.R. § 17.1002(d). In addition, the Veteran did not have other health insurance that would fully pay for the June 24, 2015 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. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael L. Marcum, 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.