Citation Nr: A21019203 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 200916-191889 DATE: December 2, 2021 ORDER Entitlement to reimbursement or payment of the costs for non-VA medical care provided by St. Mary's Health Care on June 18, 2020 for $260.00 is denied. Entitlement to reimbursement or payment of the costs for non-VA medical care provided by M.H./Advantage Health Saint Mary's Medical Group (M.H.) on June 18, 2020 for $113.00 is denied. Entitlement to reimbursement or payment of the costs for non-VA medical care provided by Dr. M.M. from Kent Radiology (Dr. M.M.) on June 18, 2020 for $39.00 is denied. FINDING OF FACT The claims in this appeal concern an episode of care on June 18, 2020 for the treatment of a non-emergent, non-service connected condition at St. Mary's Health Care's urgent care center. CONCLUSIONS OF LAW 1. The criteria for reimbursement or payment of the costs for non-VA medical care provided by St. Mary's Health Care on June 18, 2020 for $260.00 have not been met. 38 U.S.C. §§ 1725, 1728; 38 C.F.R. §§ 17.1000-17.1008. 2. The criteria for reimbursement or payment of the costs for non-VA medical care provided by M.H. on June 18, 2020 for $113.00 have not been met. 38 U.S.C. §§ 1725, 1728; 38 C.F.R. §§ 17.1000-17.1008. 3. The criteria for reimbursement or payment of the costs for non-VA medical care provided by Dr. M.M. on June 18, 2020 for $39.00 have not been met. 38 U.S.C. §§ 1725, 1728; 38 C.F.R. §§ 17.1000-17.1008. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active duty in the Army from May 1968 to July 1969. The Veteran opted into the Appeals Modernization Act (AMA) by submitting a September 2020 VA Form 10182, Decision Review Request: Board Appeal and electing the Direct Review docket. Entitlement to reimbursement or payment of costs for non-VA medical care When VA facilities are not capable of furnishing required care or services, VA may contract with non-VA facilities in order to furnish certain care, including hospital care or medical services for the treatment of medical emergencies that pose a serious threat to the life or health of a Veteran receiving medical services in a VA facility, until such time following the furnishing of care in the non-VA facility as the Veteran can be safely transferred to a VA facility. 38 U.S.C. § 1703(a)(3); 38 C.F.R. § 17.52. The admission of a Veteran to a non-VA hospital at the expense of VA generally must be authorized in advance. 38 C.F.R. § 17.54. In relevant part, in the case of an emergency that existed at the time of admission, an authorization may be deemed a prior authorization if an application is made to VA within 72 hours after the hour of admission. 38 C.F.R. § 17.54. The Veteran does not assert that he received pre-authorization for the urgent care visit on June 18, 2020. Rather, in a September 2020 letter, the Veteran wrote that prior to his visit, he had a telehealth session with a VA nurse who directed him to the in-facility urgent care center at St. Mary's Health Care, but did not explain that he needed pre-authorization for the visit. The record does not otherwise demonstrate that he requested authorization before going to urgent care center. The evidence indicates that VA was first notified of the non-VA care when the Veteran contacted the Naples Community Based Outpatient Clinic (CBOC) on June 25, 2020. On this date, the Veteran inquired as to how he should proceed as he had x-rays taken of his hips at urgent care. Furthermore, VA's internal records do not reflect prior VA contact or follow-up by the Veteran within 72 hours of his non-VA hospitalization. The episode of non-VA care was thus not pre-authorized, and reimbursement under 38 U.S.C. § 1703 is unavailable. When a Veteran receives treatment at a non-VA facility without prior authorization, two statutes allow for payment or reimbursement for the medical expenses incurred for that treatment, 38 U.S.C. §§ 1725 and 1728. Under 38 U.S.C. § 1728, VA may reimburse Veterans entitled to hospital or medical services for the reasonable value of "emergency treatment" when such services that are provided by a non-VA facility if: (1) such care or services were rendered in a medical emergency of such nature that a prudent layperson would reasonably expect that delay in seeking immediate medical attention would be hazardous to life or health; (2) such care or services were rendered to a Veteran in need thereof (A) for an adjudicated service-connected disability, (B) for a nonservice-connected disability associated with and held to be aggravating a service-connected disability, (C) for any disability of a Veteran who has a total disability permanent in nature from a service-connected disability, or (D) for any illness, injury, or dental condition in the case of a Veteran who (i) is a participant in a vocational rehabilitation program and (ii) is medically determined to have been in need of care or treatment to make possible such Veteran's entrance into a course of training, or prevent interruption of a course of training, or hasten the return to a course of training which was interrupted because of such illness, injury, or dental condition; and (3) Department or other Federal facilities were not feasibly available, and an attempt to use them beforehand would not have been reasonable, sound, wise, or practical, or treatment had been or would have been refused. 38 U.S.C. § 1728; 38 C.F.R. § 17.120. All three requirements must be met before reimbursement can be authorized. See Zimick v. West, 11 Vet. App. 45, 49 (1998); Malone v. Gober, 10 Vet. App. 539, 547 (1997). There is no medical evidence of record, nor assertion by the Veteran, that the treatment was provided for an adjudicated service-connected disability, a disability aggravated by a service-connected disability, any disability of a veteran with permanent and total disability, or any disability of a veteran who is a participant in a vocational rehabilitation program and is determined to be in need of treatment to continue his training. Because the Veteran does not meet the criteria for payment of medical expenses under 38 U.S.C. § 1728, the Veteran's claim for reimbursement must be considered under 38 U.S.C. § 1725, as implemented by 38 C.F.R. §§ 17.1000-17.1008. In the instant case, reimbursement under the provisions of 38 U.S.C. § 1725 and 38 C.F.R. § 17.1002 cannot be potentially granted as the evidence does not show (nor does the Veteran contend) that the treatment in question was emergency treatment. VA medical records demonstrate that a nurse from the Naples CBOC followed-up with the Veteran after his June 25, 2020 message regarding his hip x-rays and the Veteran stated that he would not be back in Florida until the beginning of November 2020. Subsequent VA medical records starting in November 2020 show his orthopedic consult for his hip pain was categorized as non-emergent nor urgent. Therefore, the Board does not find that the Veteran's hip pain was of such a nature that a prudent layperson would reasonably expect that delay in seeking immediate medical attention would be hazardous to life or health. Again, the Veteran does not dispute nor assert that his hip pain, for which he visited urgent care on June 18, 2020, was of an emergent nature. Accordingly, the Board finds that the preponderance of the evidence is against a finding that the non-VA medical care provided by the urgent care center at St. Mary's Health Care was either pre-approved or qualifies as emergency treatment. Reimbursement of the non-VA medical expenses must therefore be denied. See 38 U.S.C. §§ 1703, 1725, 1728. L. M. BARNARD 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.