Citation Nr: 21074978 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 18-52 894 DATE: December 16, 2021 ORDER Entitlement to payment or reimbursement of unauthorized medical expenses incurred at Grant Regional Health Center (GRHC) from January 15, 2018, to January 17, 2018, is denied. FINDING OF FACT At the time of the non-VA medical care provided from January 15, 2018, to January 17, 2018, a VA medical facility was feasibly available. CONCLUSION OF LAW The criteria for payment or reimbursement for unauthorized medical expenses incurred at GRHC from January 15, 2018, to January 17, 2018, have not been met. 38 U.S.C. §§ 1703, 1725; 38 C.F.R. §§ 17.52, 17.53, 17.120, 17.121, 17.1002. REASONS AND BASES FOR FINDING AND CONCLUSION Entitlement to payment or reimbursement of unauthorized medical expenses incurred at Grant Regional Health Center from January 15, 2018, to January 17, 2018, is denied. The Veteran is seeking payment or reimbursement for the cost of medical services at GRHC from January 15, 2018, to January 17, 2018. When a veteran receives treatment at a non-VA facility without prior authorization, such as the case here, there are two statutes that allow for claimants to be paid or reimbursed for the medical expenses incurred for that treatment, 38 U.S.C. § 1728 and 38 U.S.C. § 1725. Application of either statute is generally dependent on whether the Veteran has an adjudicated service-connected disability. Since the Veteran's private hospitalization was for a nonservice-connected disorder and there is not a service-connected disability that is total and permanent in nature, the only possible route to entitlement to unreimbursed medical expenses in this case stems from 38 U.S.C. § 1725, the Veterans Millennium Health Care and Benefits Act. Under this Act, payment or reimbursement of non-VA emergency medical services for nonservice-connected disorders for veterans without insurance is available if certain conditions are met. 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). Generally, VA will not approve claims for payment or reimbursement of the costs of emergency treatment not previously authorized for any period beyond the point of stabilization. For this purpose, VA considers that an emergency ends when the designated VA clinician at the VA facility has determined that, based on sound medical judgment, a veteran who received emergency treatment: could have been transferred from the non-VA facility to a VA medical center (or other appropriate Federal facility) for continuation of treatment, or could have reported to a VA medical center (or other appropriate Federal facility) for continuation of treatment. 38 C.F.R. § 17.1005 (b). Claims for payment or reimbursement of the costs of emergency treatment not previously authorized may be approved for continued, non-emergent treatment (that is, treatment after the veteran's condition has stabilized), only if: the non-VA facility notified VA at the time the veteran could be safely transferred to a VA facility (or other appropriate Federal facility), but the transfer of the veteran was not accepted, and the non-VA facility made and documented reasonable attempts to request transfer of the veteran to a VA facility or other appropriate Federal facility. This means the non-VA facility contacted the VA Transfer Coordinator, Administrative Officer of the Day, or designated staff responsible for accepting transfer of patients to VA (or other appropriate Federal facility) and documented such contact in the veteran's progress/physicians' notes, discharge summary, or other applicable medical record. 38 C.F.R. § 17.1005 (c). No reimbursement or payment of services not previously authorized will be made when such treatment was procured through private sources in preference to available VA or government facilities. 38 C.F.R. § 17.130. Here, the appellant testified that she presented herself to the GRHC emergency department after experiencing severe back pain at a medical appointment. The Veteran testified that she was informed by a physician's assistant that she needed to be transferred to VAMC Madison. She told the physician's assistant that she preferred to stay at GRHC so long as her Medicare insurance would cover it. The physician's assistant informed the Veteran that she could stay. Relying on this advice, and believing that her care would be covered by her Medicare insurance, the Veteran did not accept the transfer to VAMC Madison. Records from VAMC Madison show they were contacted on January 15, 2018, at 2:32 PM. VAMC Madison indicated that they had beds and would accept the Veteran if she wanted to transfer. However, they were informed that she wanted to stay at GRHC and use her Medicare insurance. The Veteran's appeal letter shows that she believed she was in too much pain to travel the 70 miles to VAMC Madison. However, a medical review of her records indicates that her complaint of severe back pain is the type of injury that is safe and reasonable for transport by EMS, especially given that she would be lying down and not seated in a car. Upon review of the record, the Board finds that the Veteran is not entitled to payment of or reimbursement for the cost of medical services incurred at Grant Regional Health Center from January 15, 2018, to January 17, 2018. According to the August 2018 VA Medical Center (VAMC) decision, the claim was denied because the Veteran was not clinically emergent. After reconsideration the claim was again denied because the Veteran could have been safely transferred to a VA facility for continued treatment but declined to transfer. Under 38 C.F.R. § 17.1002, there are eight criteria that must be met in order for payment to be made. Among the criteria are the lack of a feasibly available VA or other Federal facility and the personal liability of the Veteran to the service provider. See Zimick v. West, 11 Vet. App. 45, 49 (1998); Malone v. Gober, 10 Vet. App. 539, 547 (1997); see also Melson v. Derwinski, 1 Vet. App. 334, 337 (the use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). The determination of whether a VA facility was "feasibly available" must be made after consideration of such factors as the urgent nature of the veteran's medical condition and the length of any delay that would have been required to obtain treatment from a VA facility. Cotton v. Brown, 7 Vet. App. 325, 328 (1995). Respecting the relative distance of the travel involved, the Board may take judicial notice of facts, as compared to evidence, which are not subject to interpretation. See Yeoman v. West, 140 F.3d 1443 (Fed. Cir. 1998); Dedicatoria v. Brown, 8 Vet. App. 441 (1995). The Board notes that the distance from GRHC to VAMC Madison is approximately 80 miles, and would take an hour and a half. The Board finds a VA facility was feasibly available, but the Veteran chose the private facility instead. VAMC Madison indicated that it had beds available, and a review of the records shows the Veteran's condition was of a type that was safe for transfer via ambulance, especially given that the Veteran would be laying on her back and not seated. The Board notes the Veteran's contentions that she did not believe that she could endure the drive to VAMC Madison. However, as noted above, the Veteran would have been transferred by EMS, laying down, a trip that would have been safe for the type of complaint she had. Since a VA facility was feasible, payment or reimbursement of medical expenses pursuant to 38 U.S.C. § 1725 must be denied. The Board also notes that the Veteran is no longer personally liable to GRHC for the medical services provided from January 15, 2018 to January 17, 2018. The Veteran testified that she filed for bankruptcy and the debt was discharged. She specifically noted that she thought it was not right that "filing bankruptcy meant the hospital didn't get paid either." As the Veteran is no longer personally liable for the payment of the debt, payment or reimbursement of medical expenses pursuant to 38 U.S.C. § 1725 must be denied. The Board is sympathetic to the Veteran's contention that had she known that her Medicare insurance would not cover her hospitalization, she would have accepted the transfer to VAMC Madison. However, she relied on the advice of the GRHC physician's assistant that her Medicare would cover her hospitalization and chose to stay at GRHC. After carefully reviewing the Veteran's statements and the medical evidence of record, the Board finds that the claim for payment or reimbursement of unauthorized medical expenses incurred from January 15, 2018 to January 17, 2018 at GRHC, must be denied as VA facilities were feasibly available. In reaching this decision the Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Uller, 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.