Citation Nr: 21069894 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 12-08 323A DATE: November 22, 2021 ORDER Entitlement to payment or reimbursement for unauthorized medical expenses incurred by the Veteran at Wellington Regional Medical Center from July 3, 2009 to July 6, 2009, is denied. FINDINGS OF FACT 1. The Veteran was treated, without prior authorization from VA, from July 3, 2009 to July 6, 2009, at Wellington Regional Medical Center for a severe cough and chest pain. 2. The Veteran is not service connected for any disability. 3. The treatment received on from July 3, 2009 to July 6, 2009 was not for a medical emergency, and a prudent layperson would not believe the symptoms experienced were emergent in nature. CONCLUSION OF LAW The criteria for entitlement to payment or reimbursement of unauthorized medical expenses for treatment at Wellington Regional Medical Center from July 3, 2009 to July 6, 2009 have not been met. 38 U.S.C. §§ 1703, 1725, 1728, 5107(b); 38 C.F.R. §§ 3.102, 17.53, 17.54, 17.120, 17.121, 17.1000-1008. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1969 to May 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 determination by a Department of Veterans Affairs (VA) Medical Center. When the Veteran file his April 2012 substantive appeal to the Board (VA Form 9), he requested the opportunity to testify at a hearing before the Board. No action was taken to schedule the Veteran for a Board hearing. In September 2016, the Board remanded the Veteran's case and instructed the Agency of Original Jurisdiction (AOJ) to schedule the Veteran for a Board hearing pursuant to his request. Subsequently, the Veteran was scheduled for a Board hearing. However, that hearing was rescheduled several times. The hearing was eventually set to be held on October 20, 2021. However, prior to that hearing, the Veteran (and his fiduciary), through the Veteran's representative, requested that the hearing request be withdrawn because current circumstances were such that the Veteran was unable to provide testimony at any hearing. Accordingly, the Veteran's April 2012 hearing request is deemed withdrawn and the Board will proceed with an appellate review of the case. Entitlement to payment or reimbursement for unauthorized medical expenses incurred by the Veteran at Wellington Regional Medical Center from July 3, 2009, to July 6, 2009. The Veteran claims entitlement to payment or reimbursement of unauthorized medical expenses that were incurred when he presented for treatment at the Wellington Regional Medical Center emergency department on July 3, 2009. The Veteran's medical records show that he checked into the emergency department at Wellington Regional Medical Center on July 3, 2009 with complaints of a serve cough and chest pain. He continued to receive treatment for his symptoms until he was deemed stable and ready for discharge on July 6, 2009. Federal statutes and VA regulations offer several avenues by which a veteran can claim payment or reimbursement for emergency medical expenses incurred at non-VA medical facilities. The record does not show that prior authorization was received from any VA Medical Center to seek emergency services at Wellington Regional Medical Center. In the absence of prior authorization for medical services, there is no factual or legal basis for payment or reimbursement by VA under 38 U.S.C. § 1703 and 38 C.F.R. §§ 17.52, 17.53, and 17.54 for contracted medical services at a non-VA facility. Alternatively, reimbursement for unauthorized medical expenses may be made pursuant to 38 U.S.C. § 1728. Generally, to be entitled to payment or reimbursement of medical expenses incurred at a non-VA facility, a claimant must satisfy three conditions. There must be a showing that (a) the care and services rendered were either: (1) for an adjudicated service-connected disability, (2) for a nonservice-connected disability associated with and held to be aggravating an adjudicated service-connected disability, (3) for any disability of a veteran who has a total disability, permanent in nature, resulting from a service-connected disability, or (4) for any injury, illness, or dental condition in the case of a veteran who is participating in a rehabilitation program and meets the criteria in 38 C.F.R. § 17.47(i); (b) the services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health; and (c) no VA or other Federal facilities were feasibly available and an attempt to use them beforehand or obtain prior VA authorization for the services required would not have been reasonable, sound, wise, or practicable, or treatment had been or would have been refused. See 38 U.S.C. § 1728; 38 C.F.R. § 17.120. As of July 2009, the Veteran was not service connected for any disabilities, although he was granted nonservice-connected pension benefits, effective May 7, 2009, due primarily to gastroesophageal reflux disease (GERD), hypertension, and diabetes. As the Veteran is not service-connected for any disability, he is not eligible for payment for unauthorized medical expenses under 38 U.S.C. § 1728. Reimbursement for unauthorized medical expenses may also be claimed pursuant to 38 U.S.C. § 1725 and 38 C.F.R. §§ 17.1000-1008. Section 1725 was enacted as part of the Veterans Millennium Health Care and Benefits Act, Public Law 106-177, the provisions of which became effective on May 29, 2000. To be eligible for reimbursement under this authority, a veteran must satisfy a series of conditions, including the following: 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 body part. 38 C.F.R. § 17.1002(b). The Veteran does not meet the criteria for reimbursement under 38 U.S.C. § 1725, because the preponderance of the evidence indicates that services were not rendered in a medical emergency of such nature that delay would have been hazardous to life or health. Further, notwithstanding his immunocompromised status, a prudent layperson in the Veteran's position would not have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. The Veteran's primary complaint upon entering the emergency department on July 3, 2009 was a serve cough and chest pain. The evidence of record shows that on June 22, 2009 (a month prior to his visit to Wellington Regional Medical Center), while still living in New York, the Veteran developed chest symptomatology, was seen by his doctor at the James J. Peters VA Medical Center in the Bronx and was told that he had a respiratory allergy condition for which he was treated with antibiotics. As there was no improvement, a week later, he saw another doctor who diagnosed him with bronchitis. He was given azithromycin. In the meantime, he moved to Florida. However, his condition never totally improved. Days prior to coming to the emergency room, he experienced shortness of breath and had chest discomfort while taking deep breaths and when he was moving. Upon admission to the emergency department, the Veteran was afebrile, he experienced no chills and pulse oximetry was normal. During his physical, he was found to have abnormal chest radiograph imaging. It was noted during the examination of the lung fields that there were occasional crackles at the bases of the lungs. The doctor suspected pulmonary infiltrate of uncertain cause and perhaps associated with sinus disease. It was unclear if it might be acute or chronic. IT was decided that they would treat with moxifloxacin, humidified oxygen, and nebulizer treatment. CT scan imaging of the sinuses and chest was recommended. Radiology was consulted where 2 chest x-ray views, CT Maxillo without contrast, and a CT chest without contrast were performed. X-rays showed improved aeration of the left lingula and no focal infiltrate along with multiple thoracic compression fractures (likely old). The CTs showed mild atelectasis of the lower lung and a trace on the right lung base. Minimal right pleural effusion was found. Trace of mucosal thickening of the right maxillary sinus with deviated nasal spectrum was found on the Maxillo CT. On July 5, 2009, the Veteran was improving but still had some complaints of chest pain. The doctors suspected pneumonia. On July 6, 2009, he was stable enough to be discharged. The episode of care from July 3, 2009 to July 6, 2009 was denied under the authority of 38 U.S.C. § 1725. The Board therefore finds that a prudent layperson who possesses an average knowledge of health and medicine would not have believed that the symptoms he experienced on July 3, 2009 were emergent in nature, i.e., indicative of serious impairment to bodily functions, serious dysfunction of any bodily organ, or other injury which posed a serious threat to general health, and that they were not, in fact, indicative of a medical emergency of such nature that delay would have been hazardous to life or health. See 38 U.S.C. §§ 1725, 1728. There is no medical evidence of record which is contrary to this finding. In fact, there is evidence that the Veteran experienced a similar symptomatology (albeit slightly less severe) for approximately one month prior to his admittance to the emergency department at Wellington Regional Medical Center. There is no indication that the symptoms had suddenly worsened on that day or that he had any trouble breathing or believed that his cough or chest pains was endangering his life or health. The Board has considered the lay statements sent by the Veteran to VA, in which he has asserted that at the time he went to the emergency department after the ambulance driver refused to take him to the VA medical center due to mileage. Whether or not this true, the fact remains that the evidence does not demonstrate that the Veteran was truly experiencing a medical emergency such that he reasonably believed he needed immediate care and did not have time to seek treatment at an available VA medical facility. As the requirements for reimbursement under 38 U.S.C. §§ 1725 or 1728 of there being either treatment for a service-connected disability and/or a medical emergency which necessitated private hospital treatment are not met, the analysis does not need to proceed any further to the additional requirements of these provisions, as all provisions must be met to establish entitlement to reimbursement. See Melson v. Derwinski, 1 Vet. App. 334 (1991). The appeal in this matter must be denied. The Board wishes it could do something more to help the Veteran given his current circumstances. However, the Board finds that there is no legal basis upon which it can grant the Veteran's claim. Accordingly, the claim is denied. The Board has considered the doctrine of reasonable doubt. However, that doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves the claim. In this case, the preponderance of the evidence is against the Veteran's claim. Therefore, the doctrine of reasonable doubt is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 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.