Citation Nr: 21076178 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 15-39 093A DATE: December 22, 2021 ORDER Entitlement to payment or reimbursement of non-Department of Veterans Affairs (VA) medical expenses incurred for medical treatment received at Florida Hospital Tampa, on April 17, 2015, is denied. FINDINGS OF FACT 1. Medical treatment received in the emergency room at Florida Hospital Tampa on April 17, 2015, was for non-service-connected disabilities at the time of treatment. 2. Medical treatment received in the emergency room at Florida Hospital Tampa on April 17, 2015, was not 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; a VA facility was feasibly available to treat the Veteran's condition; and an attempt to use them beforehand would have been considered reasonable by a prudent layperson. CONCLUSION OF LAW The criteria for payment or reimbursement of non-VA medical expenses incurred for medical treatment received at Florida Hospital Tampa on April 17, 2015, have not been met. 38 U.S.C. §§ 1703, 1725, 1728, 5107; 38 C.F.R. §§ 3.102, 17.52, 17.53, 17.55, 17.120, 17.121, 17.1000-17.1008. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1987 to March 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 decision issued by the Department of Veterans Affairs (VA) Medical Center in Tampa, Florida. The Veteran also requested a Board hearing in November 2015. Specifically, she opted for an in-person Travel Board hearing. In October 2021, her representative submitted a request to withdrawal the Board hearing request. Therefore, the hearing request is considered withdrawn. Entitlement to payment or reimbursement of non-VA medical expenses incurred for medical treatment received at Florida Hospital Tampa, on April 17, 2015. The Veteran seeks entitlement to payment or reimbursement of non-VA medical expenses incurred for medical treatment received at Florida Hospital Tampa on April 17, 2015. For the reasons that follow, the Board finds that entitlement to this benefit is not warranted. 38 U.S.C. § 1703 and 38 C.F.R. § 17.52 specify that authorization for non-VA care, may only be given for hospital care or medical services to a veteran under specific circumstances, including those relating to service-connected disability, emergency non-VA care during or following a course of VA care, care for veterans who are participating in a VA rehabilitation program or who are receiving VA nursing home care, and dental care for former prisoners of war. Here, the record does not reflect, and the Veteran does not contest, that she was treated for service-connected disabilities or that the emergency non-VA care occurred during or following a course of VA care. The evidence further does not demonstrate that she was a participant in a VA rehabilitation program or was receiving VA nursing home care. Therefore, she does not meet the statutory requirements for reimbursement of authorized non-VA hospital care and medical services. When a Veteran receives treatment at a non-VA facility without prior authorization, such as the case here, two statutes, 38 U.S.C. § 1728 and 38 U.S.C. § 1725, allow for claimants to be paid or reimbursed for the medical expenses incurred for that treatment. Application of either statute is generally dependent on whether the Veteran has an adjudicated service-connected disability. 38 U.S.C. § 1728 provides for payment or reimbursement of unauthorized medical expenses for the emergency treatment of adjudicated service-connected disabilities; non-service-connected disabilities associated with and held to be aggravating an adjudicated service-connected disability; any disability of a veteran who has a total disability permanent in nature from a service-connected disability; or, for any illness, injury, or dental condition of a veteran as a participant in a VA vocational rehabilitation program. See 38 C.F.R. §§ 17.120, 17.121. In this instance, there is no evidence or assertion that the medical treatment received on April 17, 2015, involved care for a service-connected disability or a nonservice-connected disability aggravating an adjudicated service-connected disability. At the time of treatment, the Veteran was service-connected for bilateral pes planus, right ankle instability, status post-tonsillectomy residuals, and bilateral hallux valgus with hammer toe of the second toe. The April 2015 discharge summary from Florida Hospital Tampa showed that she was discharged with diagnoses of acute generalized myalgias, acute cocaine abuse, and acute pharyngitis. Therefore, as care was not involved for a service-connected disability or a nonservice-connected disability aggravating an adjudicated service-connected disability, reimbursement pursuant to 38 C.F.R § 1728 is not warranted. Additionally, the Veteran does not have a total disability permanent in nature resulting from her service-connected disabilities and was not participating in a rehabilitation program under 38 U.S.C. Chapter 31. Thus, this portion of 38 U.S.C. § 1728 also does not apply. As a result, the Veteran's medical reimbursement claim may only be considered under 38 U.S.C. § 1725. Under 38 U.S.C. § 1725, payment or reimbursement for emergency services for non-service-connected conditions in non-VA facilities may also be awarded under certain circumstances. 38 C.F.R. §§ 17.1000-03. To be eligible for reimbursement under this authority, all of the following conditions must be satisfied: (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 that 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, in whole or in part, 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 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 or in part, 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 U.S.C. § 1725; 38 C.F.R. § 17.1002. As such, the question before the Board is whether the non-VA care incurred on April 17, 2015, met all of the aforementioned conditions. For reasons explained below, the Board finds that reimbursement under 38 U.S.C. § 1725 is not warranted. The evidence of record shows that the Veteran is a participant of the U.S. Department of Housing and Urban Development-VA Supportive Housing (HUD-VASH) program. VA treatment records show she worked with an assigned VA social worker, who provided information, support, and resources, both in-person and by telephone, as she tries to find sustained and permanent housing. In April 2015, the VA treatment records reflect that this VA social worker met with her on several occasions. Of note, on April 15, 2015, this VA social worker met with her to deliver to her a food box and an apartment list, as well as mailed her a list of low-cost dental programs, as the Veteran mentioned tooth pain. The Veteran did not mention general aches or generalized severe pain. On April 16, 2015, the VA social worker returned the Veteran's telephone call. She informed the VA social worker that she found a place to rent and would like assistance to complete the rental application; they arranged to meet the next day in the afternoon. Again, the Veteran did not mention that she was experiencing generalized severe pain. On the morning of April 17, 2015, the Veteran arrived by ambulance to Florida Hospital Tampa's emergency department, with complaints of generalized pain from fibromyalgia that began three days ago. The clinician noted that the character of symptoms was pain and the degree at onset and at present were minimal. The Veteran reported having fever and chills for the last two days, but denied throat edema, chest pain, abdominal pain, nauseas, vomiting, and shortness of breath. She also reported dental pain located in her left upper tooth, a migraine and sore throat for the last three days, and fever and chills for the last two days. The clinician also noted that she was of moderate distress, non-toxic appearing, not anxious, and not ill-appearing. The record indicates that her vital signs were reviewed and were normal; oxygen saturation was at 98 percent. About three hours later, she was discharged with diagnoses of acute generalized myalgias, acute cocaine abuse, and acute pharyngitis, as indicated above. Later that same afternoon, the Veteran met with her VA social worker, as scheduled. The VA treatment record showed the VA social worker reviewed the housing application with her, explained to her that she was capable of completing the form herself, and the Veteran agreed. At the end of their visit, she reported no other needs at that time. On April 18, 2015, the Veteran arrived at the Tampa VAMC emergency room via ambulance with the same complaints of generalized pain from fibromyalgia, but this time, reported pain for the past '4 months' with pain all throughout her body. She again described her pain as a 10 out of 10 and also reported of a migraine. The Veteran reported she went to the Florida hospital yesterday and 'all they gave me was Toradol.' She wanted pain medication, as she stated that Toradol and Tramadol does not work for her. The clinician noted that she did not appear to be in any acute distress. The Veteran was discharged with a diagnosis of chronic fibromyalgia. The Veteran asserts that the reason she was transported to the Florida Hospital in Tampa on April 17, 2015, was that the paramedics called the Tampa VAMC first but was told they were full. See October 2017 letter. Given the above, the Board finds that the Veteran's condition on April 17, 2015, was not 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. The medical records from the day of the emergent care reveal that the treating clinician noted that the degree of pain at onset and at present were minimal. The Veteran denied having experienced any serious symptoms such as throat edema, chest pain, or shortness of breath. She also denied having any abdominal pain, nausea, or vomiting. The clinician also noted that she was of moderate distress, non-toxic appearing, not anxious, not ill-appearing. Significantly, her vital signs were reviewed and found to be normal, and her oxygen saturation was 98 percent. While the objective evidence showed she was not feeling well, the nature and severity of her self-reported and clinically observed symptoms did not rise to a level where a prudent layperson would reasonably expect that delay in seeking medical attention would jeopardize one's health. Moreover, the Board observes that the Veteran was not held overnight, but rather discharged a few hours later, and able to continue with her preplanned visit with her VA social worker. In reaching the determination that her condition was not of such emergent nature that a prudent layperson could reasonably expect the absence of immediate medical attention would result in the health of the individual in serious health impairment, the Board has also considered that the Veteran did not mention being in severe pain to her assigned HUD-VASH VA social worker during their meetings on both the few days before or on the afternoon of April 17, 2015, although she was consistent in mentioning her tooth pain. Finally, the Board acknowledges the Veteran's contentions regarding that the ambulance was told by the Tampa VAMC they were full, which was why she went to Florida Hospital Tampa for treatment. Review of the Tampa VAMC medical records however reveal no evidence indicating the Veteran, or any non-VA emergency medical personnel, try to reach them to obtain treatment there, or pre-authorization for alternate private care. There is no indication in the record that the Tampa VAMC was unavailable for treatment the day of April 17, 2015. Therefore, as the conditions under 38 C.F.R. § 17.1002 have not been met, reimbursement under 38 U.S.C. § 1725 is not warranted. Given the foregoing, the Board finds that the preponderance of the evidence is against payment or reimbursement of unauthorized non-VA medical expenses incurred at Florida Hospital Tampa, on April 17, 2015. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The claim is denied. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Tang, 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.