Citation Nr: 21013409 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 16-27 201 DATE: March 9, 2021 ORDER Entitlement to payment or reimbursement for the cost of medical treatment received at DeSoto Memorial Hospital on August 7, 2015 is granted, subject to the laws and regulations governing the payment of VA monetary benefits. FINDING OF FACT The treatment received at the DeSoto Memorial Hospital emergency room on August 7, 2015 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 treatment received at DeSoto Memorial Hospital on August 7, 2015 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 December 1976 to December 1979. The Veteran and his spouse testified before the undersigned Veterans Law Judge at a videoconference hearing in September 2018. A transcript is of record. This claim was previously before the Board in December 2020, at which time the Board remanded it for additional development. The requested development has been completed, and the claim is properly before the Board for appellate consideration. Entitlement to payment or reimbursement for the cost of medical treatment received at DeSoto Memorial Hospital on August 7, 2015 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 August 7, 2015. 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. Service connection was not in effect for any disability at the time of the August 2015 treatment at DeSoto Memorial Hospital. 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 an 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). A condition that a prudent layperson would reasonably expect that delay in seeking medical attention would be hazardous to life or health can include one manifested by severe pain that results in serious dysfunction of a body part. 38 C.F.R. § 17.1002(b). On August 7, 2015 the Veteran presented to the DeSoto Memorial Hospital emergency room with right flank pain, abdominal pain, and nausea. He rated the pain as six out of ten in severity. A CT scan showed trace ureterectasis on the right with a 2 mm. calcification in the bladder consistent with a recently passed calculus. The Veteran wrote in November 2015 that while at work on August 7, 2015, he began to experience pain in the right kidney area. He doubled over with pain and nausea, was unable to drive, and had to be taken to a local hospital. Once he began receiving pain management treatment, the Veteran informed VA that he received treatment at a non-VA facility since he could not drive 45 minutes to the nearest VA facility. A kidney stone was discovered in his bladder, and he had follow-up treatment in December 2015 with a VA urologist. The Veteran testified at the September 2018 hearing that on August 7, 2015 he was crossing a street to deliver food from his restaurant when he began to have pain in his back and right flank. He stumbled and staggered from the pain and could not stand up properly. The Veteran further testified that he felt it was a serious situation and that his life could have been in danger, and noted that he had previously had kidney stones. His spouse drove him to the nearest emergency room because the nearest VA hospital would have taken an hour and 15 minutes to get to. The Veteran’s spouse testified that the Veteran was in distress and pale, reported pain, and that it appeared to be an emergency. 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. A billing statement shows that the Veteran was responsible for paying an estimated $4,196 to DeSoto Memorial Hospital for the August 7, 2015 treatment. See 38 C.F.R. § 17.1002(e). Regarding the potential feasible availability of a VA or other federal facility, the VA emergency room in Tampa is approximately 95 miles from where the Veteran worked in August 2015. DeSoto Memorial Hospital is approximately 1.5 miles away. Given that the Veteran’s pain and nausea would have made it difficult at best for him to go to the VA emergency room in Tampa, 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 for the serious pain and extreme nausea would have placed the health of the Veteran in serious jeopardy or caused serious impairment to bodily functions given that he had already been diagnosed with kidney stones. 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). The Veteran was enrolled in the VA health care system and had been treated within the 24 months prior to August 7, 2015. See 38 C.F.R. § 17.1002(d). For example, an October 2015 clinical tracking record listing whether the various criteria for this claim were met states, “CLINICAL reviewed as eligible under 38 U.S.C. § 1725,” indicating that the Veteran had been enrolled and treated within the prior 24 months. In addition, the Veteran did not have other health insurance that would fully pay for the August 7, 2015 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. A. P. SIMPSON 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.