Citation Nr: 21009027 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 04-20 458A DATE: February 18, 2021 ORDER Payment or reimbursement of medical expenses incurred on November 20, 2001 through November 22, 2001 at Alameda Hospital is denied. FINDING OF FACT The Veteran did not receive Department of Veterans Affairs (VA) health care within the 24-month period preceding her treatment on November 20, 2001 at Alameda Hospital. CONCLUSION OF LAW The criteria for payment or reimbursement of medical expenses incurred on November 20, 2001 through November 22, 2001 at Alameda Hospital have not been met. 38 U.S.C. § 1725; 38 C.F.R. §§ 17.1000-1008. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1998 to February 2001 and from January 2004 to July 2005. This case comes before the Board of Veterans’ Appeals (the Board) from a February 2002 decision of the Department of Veterans Affairs (VA). The Veteran testified before a Decision Review Officer (DRO) at an August 2003 DRO hearing. A transcript is of record. The Veteran testified before the undersigned at a November 2020 Board hearing. A transcript is of record. 1. Payment or reimbursement of medical expenses incurred on November 20, 2001 through November 22, 2001 at Alameda Hospital is denied. When VA facilities or other government facilities are not capable of furnishing economical hospital care or medical services because of geographic inaccessibility or because they are not capable of furnishing care or services required, VA may contract with non-VA facilities to provide the appropriate care. 38 U.S.C. § 1703; 38 C.F.R. § 17.52. When, however, 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, 1728. In the present case, the Veteran did not receive treatment for a service-connected disability or for a non-service-connected disability associated with and held to be aggravating a service-connected disability. Moreover, the Veteran did not have at the time of treatment a total disability permanent in nature from a service-connected disability, and was not a participant in a vocational rehabilitation program. Notably, service connection is effective as of April 2013. See April 2019 rating code sheet. Thus, reimbursement pursuant to 38 U.S.C. § 1728 is not warranted, and the Veteran does not contend as such. Under 38 U.S.C. § 1725, payment or reimbursement for emergency services for non-service-connected conditions in non-VA facilities may also be authorized. 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. 38 U.S.C. § 1725; 38 C.F.R. § 17.1002. The Veteran received emergency care on November 20, 2001 to November 22, 2001 at Alameda Hospital, for complaints of abdominal pain associated with vomiting and low-grade fever. See November 2001 emergency department physician note. She received operative treatment to remove her appendix. See November 2000 emergency department nursing record. The Board finds the criteria for VA reimbursement under 38 U.S.C. § 1725(a-c) and (e-f) have been met and are not in dispute. As such, the crux of the case centers on whether or not the Veteran had received VA health care within the 24-month period preceding her November 2001 private treatment. The Veteran contends that she received VA treatment within the 24 months prior to her November 2001 treatment at Alameda Hospital. In this regard, at her November 2020 Board hearing, she testified that she received VA treatment in February, March, April, May, and June 2000. See November 2020 Board hearing transcript at 4. VA treatment records show treatment in August 2008 and no treatment prior to August 2008. Moreover, at her August 2003 DRO hearing, the Veteran testified that the reason she did not go to VA prior to her November 2001 private treatment was because she did not know she was allowed to go to VA. See August 2003 DRO hearing testimony. In her June 2003 substantive appeal, the Veteran further reported that she did not understand that she had VA benefits when she left the military. See June 2003 VA Form-9. Further, although the Veteran testified that she received VA treatment in February, March, April, May, and June 2000, she also testified that she did not think she was enrolled in the VA healthcare system during that time, but she could not remember. See November 2020 Board hearing transcript at 3. The Board finds the preponderance of the probative evidence demonstrates that the Veteran did not receive VA treatment during the pertinent time period. The lack of objective evidence in the clinical records and the Veteran's own uncertainty regarding the issue weigh against such a finding. The Board is sympathetic to the Veteran’s contentions regarding receiving VA treatment in February, March, April, May, and June of 2000. However, the Board is bound by the statutory limitations on reimbursement by VA. The record does not support that she received VA health care in the 24 months prior to her treatment in question. This is a required element for reimbursement. 38 U.S.C. § 1725. Accordingly, payment or reimbursement of medical expenses incurred on November 20, 2001 to November 22, 2001 at Alameda Hospital is denied. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Schick, 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.