Citation Nr: 21007998 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 17-01 706 DATE: February 11, 2021 ORDER Entitlement to payment or reimbursement for unauthorized non-VA medical expenses incurred for treatment at Mayo Clinic from February 10, 2016 to February 11, 2016 is denied. FINDING OF FACT The non-VA medical care provided was not of such a nature that delay would have been hazardous to the Veteran’s life or health. CONCLUSION OF LAW The criteria for payment or reimbursement for unauthorized medical expenses incurred for treatment at Mayo Clinic from February 10, 2016 to February 11, 2016 are not met. 38 U.S.C. §§ 1703, 1725; 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120, 17.121. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1974 to September 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 administrative decision of the Department of Veterans Affairs Medical Center (VAMC). The Veteran was scheduled for an April 2019 Board hearing in accordance with his request. However, the Veteran was deemed a no-show for the hearing and to date the Veteran has not requested that the hearing be rescheduled. As such, the Veteran’s hearing request is withdrawn. 38 C.F.R. § 20.704 (d). Entitlement to payment or reimbursement for unauthorized non-VA medical expenses incurred for treatment at Mayo Clinic from February 10, 2016 to February 11, 2016. 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. § 17.5. The admission of a Veteran to a non-VA hospital at the expense of VA 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. In this case, there is no evidence of prior authorization and the Veteran does not contend that he attempted to obtain prior authorization for this episode of treatment. 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. In part, under 38 U.S.C. § 1728, in order to be entitled to payment or reimbursement of medical expenses incurred at a non-VA facility, there must be a showing that three criteria are met: (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 who is medically determined to be in need of hospital care or medical services for reasons set forth in 38 C.F.R. § 17.47 (i) (formerly § 17.48(j) (2000)); and (b) the treatment was for a medical emergency of such 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 (c) VA or other Federal facilities were not feasibly available and an attempt to use them beforehand or obtain prior authorization for the services required would not have been reasonable, sound, wise, or practicable, or treatment had been or would have been refused. 38 U.S.C. § 1728; 38 C.F.R. § 17.120 The evidence does not show, and the Veteran does not contend that his emergent condition on February 10, 2016, was due to a service-connected disability, or that it was due to a nonservice-connected disability associated with and held to be aggravating a service-connected disability. At the time of this treatment, service connection was not in effect for any disability. The Veteran received pension benefits. Further, the treatment at issue was not for any injury or illness contracted in the course of a rehabilitative program. Consequently, the Veteran is not eligible for payment or reimbursement under 38 U.S.C. § 1728. See 38 C.F.R. § 17.120. VA payment or reimbursement for private emergency medical treatment may also be considered under 38 U.S.C. § 1725. There are three primary requirements for payment or reimbursement under this statute. The Veteran must be treated at an emergency department or similar facility held out as providing emergency treatment to the public. The treatment received must be 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 is met if there is 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 serious dysfunction of any bodily organ or part. Additionally, a VA or federal facility must not be feasibly available to provide the treatment. 38 C.F.R. § 17.1002 (a-c). All of these criteria must be met for VA to grant payment or reimbursement for private emergency treatment under 38 U.S.C. § 1725. 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 setting of such nature that delay would have been hazardous to life or health, and 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. Both medical and lay evidence may be considered in a prudent layperson evaluation for determining what constitutes a “medical emergency.” That is, VA should weigh “the totality of the circumstances” to determine whether a prudent layperson would consider the situation emergent. Swinney v. Shinseki, 23 Vet. App. 257, 264-266 (2009). In this case, the Veteran contends that his condition constituted a medical emergency as he was having severe pain in his groin area. See August 2016 Notice of Disagreement. On February 10, 2016, the Veteran presented to the emergency room with pain in the penile area. He reported a 3-day onset of intermittent testicular pain with urinary and ejaculatory hesitancy. He denied a fever and he stated that he was having unprotected intercourse. The Veteran underwent a testicular sonogram comp. The impression was that both of his testicles were normal, and he had mild right hydrocele. He also had an impression of sexually transmitted disease exposure and urethritis. The Veteran was prescribed medication and discharged. In contrast to the Veteran’s assertions, the above summarized evidence shows that there is no indication from the record that his symptoms were severe in nature or had worsened at the time he reported to the emergency room. In this regard, it was noted that the Veteran was not experiencing a fever and he had been experiencing testicular pain for several days. It was also noted that the Veteran had denied cough, chills, nausea/vomiting, shortness of breath, and weakness. In such a situation, the Board finds that an individual with an average knowledge of health and medicine would not have reasonably expected that an absence of immediate medical attention would result in placing one’s health in serious jeopardy, serious impairment to bodily functions or serious dysfunction of any bodily organ or part. Consequently, the Board finds that the Veteran is not shown to have been suffering from an emergency medical condition so as to pose a serious threat to his life and health at the time of his treatment from February 10, 2016 to February 11, 2016. After carefully reviewing the Veteran’s statements and the medical evidence of record, the Board finds that the preponderance of the evidence is against the claim of entitlement to payment or reimbursement of unauthorized medical expenses incurred for treatment from February 10, 2016 to February 11, 2016. The appeal is denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brennae L. Brooks, 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.