Citation Nr: A21019541 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 200429-107099 DATE: December 7, 2021 ORDER Entitlement to payment or reimbursement for the cost of medical services provided by Punxsutawney Area Hospital on November 26, 2019, to include by Dr. Omar Khalaf and Dr. Dempsey, is granted, subject to the laws and regulations governing the payment of VA monetary benefits. FINDING OF FACT The treatment received at Punxsutawney Area Hospital on November 26, 2019, to include by Dr. Omar Khalaf and Dr. Dempsey, 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 services provided by Punxsutawney Area Hospital on November 26, 2019, to include by Dr. Omar Khalaf and Dr. Dempsey, have been met. 38 U.S.C. § 1725; 38 C.F.R. § 17.1002. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1996 to September 1996, July 1997 to September 2008, and October 2008 to May 2012. In the April 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Entitlement to payment or reimbursement for the cost of medical services provided by Punxsutawney Area Hospital on November 26, 2019, to include by Dr. Omar Khalaf and Dr. Dempsey 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 November 26, 2019. Therefore, 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. At the time of the November 26, 2019, private medical treatment, service connection was in effect for traumatic brain injury, lumbar spine spondylosis with degenerative disc disease, left shoulder tendonitis, a right knee strain, tinnitus, right lower extremity radiculopathy with sciatic nerve involvement, left lower extremity radiculopathy with sciatic nerve involvement, mild degenerative joint disease of the right metatarsophalangeal (big toe) joint, bilateral hearing loss, and gastroesophageal reflux disease. The Veteran does not have a total and permanent service-connected disability rating, and this treatment was not for a service-connected disability or for a disability that was aggravating a service-connected disability. 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. 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). Punxsutawney Area Hospital treatment records show that on November 26, 2019, the Veteran presented to the emergency department with left fourth and fifth toe pain after a shelf fell on his toes. There was sensation, and he was able to move his toes. The Veteran was diagnosed fourth and fifth distal phalangeal fractures based on x-rays. He was to follow-up with his primary care physician as needed, and could tape his toes together for comfort. The Veteran wrote in April 2019 that he dropped a large, heavy object on his left foot. After several minutes of severe pain, he was able to remove his shoe but could not localize the injury. There was generalized discoloration and swelling, and the pain did not abate. He continued that he became increasingly concerned that he may have broken or crushed a part of the foot and that it would worsen without immediate medical attention. The closest VA hospital in Altoona was 64 miles away, while the private hospital was four miles away. He felt that driving to Altoona with a distracting level of pain in bad weather and at night was "out of the question." The Veteran meets the requirement of 38 C.F.R. § 17.1002(a) that the treatment be provided in a hospital emergency department. The Veteran is also financially liable for the treatment. The decisions on appeal show that the Veteran is responsible for paying $957 to Punxsutawney Area Hospital, $16 to Dr. Omar Khalaf, and $165 to Dr. Dempsey. The total amount owed is $1,138. Regarding the potential feasible availability of a VA or other Federal facility, the James E. Van Zandt VA Medical Center in Altoona is located approximately 60 miles from the Veteran's home. Punxsutawney Area Hospital is approximately five miles from the Veteran's home. Given that the Veteran was in pain and was found to have fractured bones, 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 would have placed the health of the Veteran in serious jeopardy or caused serious impairment to bodily functions, given the symptomatology. See 38 C.F.R. § 17.1002(b). 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 month period prior to November 26, 2019. See 38 C.F.R. § 17.1002(d). In addition, the Veteran did not have other health insurance that would fully pay for the November 26, 2019, 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. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott Shoreman, 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.