Citation Nr: 21026069 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 15-35 607A DATE: April 29, 2021 ORDER Payment or reimbursement for unauthorized expenses incurred by the Veteran for care at University of Iowa Hospital and Clinics (UIHC) from April 17, 2014 to April 18, 2014 is denied. FINDINGS OF FACT 1. The Veteran presented to the UIHC Emergency Department on April 17, 2014 with symptoms of lightheadedness, shortness of breath, and tingling in his arms and legs, having been advised by a VA care provider the day before to go to the emergency room if he experienced symptoms of possible stroke due to a blocked carotid artery. See VA Treatment Records (VATRs) dated April 16, 2014, April 17, 2014; May 2019 Board Hearing. 2. At the time of the Veteran’s emergency department care at UIHC, the Iowa City VA Medical Center (ICVA), located less than a mile from UIHC, also ran an emergency department, equipped for vascular and cardiology care. See March 2014 VATR (Veteran visited ICVA’s emergency department the month before his visit to UIHC); April 2020 Veterans Health Administration (VHA) Clinical Tracking Record; June 2020 VHA Email Correspondence (ICVA care providers reported that ICVA had an emergency department in 2014, and that it was equipped to handle vascular and cardiology care). CONCLUSION OF LAW The criteria for payment or reimbursement for unauthorized expenses incurred by the Veteran for care at UIHC from April 17, 2014 to April 18, 2014 are not met. 38 U.S.C. §§ 1703, 1725, 5107; 38 C.F.R. §§ 17.52-17.54, 17.120, 17.121,17.1002. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the Army from August 1973 to August 1976. This case comes before the Board on appeal from an August 2014 decision of a VA Medical Center in Omaha, Nebraska. Entitlement to Payment or Reimbursement for Unauthorized Medical Expenses VA will pay for or reimburse the cost of unauthorized care at non-VA facilities for veterans who are enrolled in the VA health care system and have received VA care within the last twenty-four months and who are personally liable for non-VA treatment costs, regardless of whether the treated condition is a service-connected condition or related thereto, under the following conditions: (a) 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; (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; (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 does not have coverage under a health-plan contract that would fully extinguish the medical liability for the emergency treatment; (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, 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. In this case, the Board finds that a VA facility with emergency department services was feasibly available at the time of the episode of care here under consideration. Therefore, the claim must be denied, and accordingly the Board’s analysis will not reach the other required elements of entitlement, enumerated above. The Veteran contends that the day before he presented at UIHC, he was directed by VA not to come to ICVA in the case of symptoms of a possible stroke, and that he was simply acting on VA’s direction when he presented to the UIHC Emergency Department on April 16, 2014. He also contends that ICVA did not have an emergency department at the time, or at least that its department was not equipped to provide vascular or cardiology care. Finally, he contends that if he had presented to ICVA, he would have been transferred to UIHC anyway. See, e.g., May 2015 VA Form 9; May 2019 Board Hearing. The medical record, including records of the Veteran’s communications with VA, neither corroborates nor contradicts the Veteran’s report that a VA care provider directed him not to come to ICVA in the case of symptoms of possible stroke, and the Board makes no finding regarding this issue. See April 16, 2014 VATR (Noting a phone call to the Veteran reminding him to visit an emergency room “if stroke symptoms develop,” but without specifying which hospital he should visit). Assuming that the Veteran was directed not to come to ICVA, unfortunately such direction would not qualify as a prior authorization of non-VA services. See Smith v. Derwinski, 2 Vet. App. 378, 379 (1992) (the advice of a doctor to go to a non-VA facility is not the type of authorization contemplated by 38 C.F.R. § 17.50d). Therefore, even if the Veteran was directed not to come to ICVA, strictly speaking the law required him to attempt to use this or another feasibly available VA or Federal facility before having recourse to a non-VA facility. In this regard, the Board acknowledges the Veteran’s very understandable frustration at having been directed by a VA representative to seek care that would not be covered by VA. The Board cannot grant relief contrary to VA law and regulations, but the Veteran’s circumstances are nevertheless regrettable. As to the Veteran’s remaining contentions, the evidence of record establishes clearly that ICVA did have an emergency department in April 2014. See March 2014 VATR (Veteran visited the ICVA Emergency Department the month before the episode of care under review). Moreover, in response to inquiries from the agency of original jurisdiction, representatives of ICVA reported that vascular and cardiology services were available at the ICVA Emergency Department in 2014. See April 2020 VHA Clinical Tracking Record; June 2020 VHA Email Correspondence. Finally, the evidence does show that ICVA “shares services” with the vascular team at UIHC. A representative of ICVA reported that, had the Veteran presented there in April 2014, “if the VA vascular team would have been unable to handle the care, they would have either transferred the Veteran out to [UIHC] for further care or would have had one of the [UIHC] providers do a consult with the VA.” See April 2020, VHA Clinical Tracking Record. However, this fact is not strictly material to the issue of entitlement, since the regulation requires the Veteran to attempt to use VA (or other Federal) facilities beforehand, unless they are not feasibly available. 38 C.F.R. § 17.1002(c). In other words, it may be true that if he had presented to ICVA he would have ended up at IUHC anyway; unfortunately, that does not change the requirement of the law. Granted that ICVA did have an emergency department equipped to treat the Veteran’s condition in April 2014, the Veteran does not contest the fact that ICVA was feasibly available. In a statement attached to his May 2015 VA Form 9, he reported that he had told a VA care provider on April 16, 2014 (the day before he presented to UIHC) that ICVA would actually be closer for him. ICVA and UIHC are in fact located within less than a mile of each other, on opposite sides of Newton Road in Iowa City, Iowa. Therefore, the Board finds that a VA facility was feasibly available on April 17, 2014, the date the Veteran presented to UIHC for emergency treatment. Accordingly, payment or reimbursement for unauthorized expenses incurred by the Veteran for care at UIHC from April 17, 2014 to April 18, 2014 is not warranted. The claim is accordingly denied. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Timmerman, 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.