Citation Nr: 21011158 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 13-28 338A DATE: March 1, 2021 ORDER Entitlement to payment or reimbursement for unauthorized non-VA medical expenses incurred for treatment provided by Columbia Gorge Medical Imaging at Providence Hood River Memorial Hospital (Providence) from May 20, 2013 to May 21, 2013 is granted. FINDING OF FACT The treatment the Veteran received at the Providence emergency room (ER) and hospital from May 20, 2013 to May 21, 2013 was for a medical condition, which a prudent layperson would reasonably believe that lack of immediate medical attention would be hazardous to health and a VA facility was not feasibly available to provide the treatment. CONCLUSION OF LAW The criteria for entitlement to payment or reimbursement of the cost of medical services provided by Columbia Gorge Medical Imaging at Providence from May 20, 2013 to May 21, 2013 have been met. 38 U.S.C. § 1725 ; 38 C.F.R. §§ 17.1002, 17.1004. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1968 to April 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 administrative decision of the Department of Veterans Affairs Medical Center (VAMC). In January 2021 the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript has been associated with the record. Entitlement to payment or reimbursement for unauthorized non-VA medical expenses incurred for treatment provided by Columbia Gorge Medical Imaging at Providence from May 20, 2013 to May 21, 2013. The Veteran seeks payment or reimbursement for the cost of medical services received at Providence from May 20, 2013 to May 21, 2013. 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, the Veteran’s spouse contacted VA to inform them that the Veteran was at the Emergency Department at Providence. However, 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 May 20, 2013 to May 21, 2013, 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 in effect for posttraumatic stress disorder, diabetes, and bilateral hearing loss. 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. According to the Veteran’s lay statements and the objective medical evidence of record, the Veteran presented to Providence on May 20, 2013 with acute onset of epigastric and chest discomfort after vomiting. He stated that he had an upset stomach, vomiting, chills, and a tight, uncomfortable feeling in his chest with shortness of breath. There was some radiation to the left neck, and he stated that he never experienced such severe pain before, but it was described as burning similar to his typical heartburn. The ER physician noted that the Veteran appeared to be pale and he had tenderness in the epigastric area, which was moderate in intensity. It was noted that his severity and current symptoms were severe. The pain was continuous on a scale of 8 out of 10, and the pain radiated to his chest. The pain increased with palpation and he was noted to have a muffled heart tone on auscultation. The Veteran underwent several tests and it was concluded that his condition was a viral GI illness or a reaction to his doxycyline. The Veteran was discharged home with instructions to return if he had shortness of breath, a fever or vomiting. The Veteran is from Parkdale, Oregon. The closest VA Medical Center is in The Dalles, Oregon, which is nearly an hour away from Parkdale, Oregon. Therefore, a VA facility was not feasibly available at the time that the Veteran sought medical treatment. See 38 C.F.R. § 17.1002 (c). Furthermore, given that the Veteran was experiencing excruciating pain in his abdomen with vomiting, chills, and a tight, uncomfortable feeling in his chest with shortness of breath on May 20, 2013, the treatment was 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 health, and that treatment at a VA facility was not feasible. See 38 C.F.R. § 17.1002 (b). There are additional criteria that must be met in order to award payment or reimbursement of the cost of private medical services under 38 U.S.C. § 1725 . However, there is no indication that the Veteran failed to meet any of these additional criteria. 38 C.F.R. § 17.1002 (d-h). Consequently, it is reasonably shown that he has met all necessary criteria to allow for VA payment of the cost of the Providence services provided to him from May 20, 2013 to May 21, 2013. 38 C.F.R. § 17.1002 (a-h). (Continued on next page.) Regarding the amount of payment or reimbursement available for the Veteran’s claim, as the Veteran is shown to have other insurance (i.e. Medicare), the amount payable was formerly governed by application of 38 C.F.R. § 17.1005 (a)(5). However, in a recent determination, the Court of Appeals for Veterans Claims (Court) found that most of the payment limitations contained in this regulation are invalid. See Wolfe v. Wilkie, 32 Vet. App. 1 (2019). Specifically, the Court determined that the prohibition of VA payment or reimbursement of deductibles and coinsurance was invalid because it was inconsistent with the language of 38 U.S.C. § 1725, which only prohibits VA payment or reimbursement of “copayments or similar payments.” Consequently, for veterans generally eligible for VA payment or reimbursement of the cost of private emergency medical expenses under 38 U.S.C. § 1725; 38 C.F.R. § 17.1002 (a-h), VA must provide payment or reimbursement for any deductibles or coinsurance amounts not covered by the veteran’s other insurance. VA is still prohibited from providing payment or reimbursement for copayments. 38 U.S.C. § 1725 (c)(4)(D). In awarding payment or reimbursement in this case, the VAMC should follow the Court’s finding in Wolfe. Michael A. Pappas 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.