Citation Nr: 21016073 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 14-41 077A DATE: March 19, 2021 ORDER Entitlement to payment or reimbursement of unauthorized medical expenses incurred at Central Florida Regional Hospital on December 20, 2013 is granted. FINDING OF FACT On December 20, 2013 the Veteran received medical treatment at a non-VA facility for her service-connected lumbosacral strain due to degenerative disc disease with bilateral radiculopathy; the treated condition was one that a prudent layperson in the circumstances would expect to be hazardous to health if medical attention was delayed and seeking treatment at a VA or federal facility was not feasibly available. CONCLUSION OF LAW The criteria for reimbursement of unauthorized, non-VA medical expenses incurred at Central Florida Regional Hospital on December 20, 2013, have been met. 38 U.S.C. §§ 1703, 1728, 5107; 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 2006 to January 2008. The Veteran testified before the undersigned at a January 2021 Board hearing. A transcript of record. 1. Entitlement to payment or reimbursement of unauthorized medical expenses incurred at Central Florida Regional Hospital on December 20, 2013, is granted. The Veteran claims reimbursement for non-VA medical expenses incurred for treatment for her service-connected lumbosacral strain due to degenerative disc disease with bilateral radiculopathy on December 20, 2013. See January 2021 Board Hearing Transcript at 2. Generally, the admission of a veteran to a non-VA hospital at VA expense must be authorized in advance. See 38 C.F.R. § 17.54. Here, the Veteran’s treatment at the non-VA facility was not authorized in advance as there is no indication that VA authorization was obtained prior to this particular admission, or within 72 hours thereafter, for the medical services provided to the Veteran for which she is now seeking payment or reimbursement. Congress, however, has authorized the reimbursement or payment for unauthorized emergency medical treatment of veterans, under two statutory provisions, 38 U.S.C. §§ 1725 and 1728. Section 1728 applies to veterans who (among other criteria) have been granted service connection for at least one disability at the time they sought treatment. The Veteran is service-connected for rhinitis with sinusitis with chronic sinus headaches; bipolar disorder; lumbosacral strain due to degenerative disc disease with bilateral radiculopathy; patellofemoral pain syndrome, left knee with degenerative remodeling; patellofemoral pain syndrome, right knee with degenerative remodeling; varicose veins, right lower extremity; varicose veins, left lower extremity; gastroesophageal reflux disease (GERD); asthma; hypertension; hemorrhoids; and fibrocystic breast disease. See July 2015 rating code sheet. As such, 38 U.S.C. § 1728 is applicable, and no further discussion of payment under § 1725 (which governs payment where a veteran has not been granted service connection or is not in receipt of total compensation) is necessary. Under 38 U.S.C. § 1728(a) and 38 C.F.R. § 17.120, VA may reimburse veterans for unauthorized medical expenses incurred in non-VA facilities where the care and services rendered were for an adjudicated service-connected disability, the services rendered were for emergency treatment of a condition 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 when seeking treatment at a VA or federal facility was not feasibly available. All three requirements must be met before payment is authorized. Zimick v. West, 11 Vet. App. 45, 49 (1998). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107. In this case, the agency of original jurisdiction (AOJ) has denied the claim for reimbursement, finding that a VA facility was available and that the care was non-emergent. Based on a review of the available record, the Board finds that the criteria for reimbursement of medical at Central Florida Regional Hospital on December 20, 2013, have been met. Indeed, as explained below, it is found that the care sought on December 20, 2013, was for an emergent condition and that VA facilities were not available. The Veteran has been in receipt of service connection for lumbosacral strain due to degenerative disc disease with bilateral radiculopathy since January 2008. See July 2015 rating code sheet. The Veteran contends that she received regular treatment for her service-connected back with radiculopathy disability at the VA clinic in Lake Baldwin. She testified that the facility closed at 4:30pm and so she went to the closest available emergency medical facility, Central Florida Regional Hospital, which was only six miles from her home. She testified that the local VA clinics did not provide emergency services. She further testified that VA told her that if she ever had an emergency at night to go to her local energy room (ER). On December 20, 2013, the Veteran had to go to the emergency department (ED) after hours, with back pain, neck pain, chest pain, and muscle spasm, which she reasonably believed was an emergency. See January 2021 Board Hearing Transcript at 3-9. On December 20, 2013, the Veteran presented to the ED at Central Florida Regional Hospital at 11:58 p.m. with back pain, neck pain, thoracic pain, and muscle spasms. See December 2013 emergency provider report. Physical examination of the back revealed decreased range of motion, peripheral tenderness, muscle tenderness, and muscle spasms. General examination revealed that she was in distress. The clinical impression was a back strain of the thoracic region. She was treated with nonsteroidal anti-inflammatory medication injection. (Continued on the next page)   Applying the regulatory framework to this case, the Board finds each criterion met. In light of the circumstances at the time, the Board finds that a prudent layperson could have reasonably expected that delay in seeking medical attention would have been hazardous to life or health and that VA treatment was not feasibly available for her condition, as she was admitted to the ED after business hours. Further, her regular VA clinic does not have an emergency room and there was no nearby VA facility with emergency services available to treat her. See January 2021 Board Hearing Transcript at 3-9. The Veteran was experiencing severe symptoms of back pain, neck pain, thoracic pain, decreased range of motion, peripheral tenderness, muscle tenderness, and muscle spasms. Moreover, she was in distress. The Veteran reasonably believed her condition required emergency medical treatment. See 38 C.F.R. § 17.1002 (stating that an emergency medical condition is one that manifests itself by acute symptoms of sufficient severity, including severe pain.) The Board finds that, under these circumstances, it was reasonable for the Veteran to seek treatment at a private hospital. Accordingly, the Board finds that affording the Veteran the benefit of any reasonable doubt, the weight of the competent and probative evidence is at least in equipoise as to whether a reasonably prudent person would have believed that further delay would have been hazardous to life or health. Accordingly, the Board concludes that the criteria for the payment or reimbursement of unauthorized, non-VA medical expenses incurred at Central Florida Regional Hospital on December 20, 2013, have been met. 38 U.S.C. § 1728; 38 C.F.R. §§ 17.120. ERIC S. LEBOFF 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.