Citation Nr: 21026169 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 19-15 719A DATE: April 30, 2021 ORDER Entitlement to reimbursement of the cost of non-VA emergency medical care at Shea Medical Center from July 19, 2017 to July 20, 2017 is denied. FINDING OF FACT There is no evidence that a nearby VA facility was not reasonably available to the Veteran when he sought emergency care. CONCLUSION OF LAW The criteria for payment or reimbursement for unauthorized medical expenses incurred at Shea Medical Center from July 19, 2017 to July 20, 2017 are not met. 38 U.S.C. §§ 1725, 1728; 38 C.F.R. §§ 17.1000-17.1008.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 2, 1988 to October 19, 1988 and from November 1988 to November 1992, with additional reserve service. This matter is before the Board of Veterans’ Appeals on appeal from decisions of the Department of Veterans Affairs (VA) Network Payment Center, under the Veterans Health Administration. The Board remanded this matter for further development in November 2019. It has since been returned to the Board for further appellate review. Entitlement to reimbursement of the cost of non-VA emergency medical care at Shea Medical Center from July 19, 2017 to July 20, 2017 is denied. The Veteran received emergency treatment and evaluation at Shea Medical Center (SMC) from July 19, 2017 to July 20, 2017. The treatment was for chest pain, which was ultimately determined to be from lung tumors. The VA Medical Center denied the Veteran’s appeal on the basis that he did not receive VA medical evaluation or treatment under the authority of 38 U.S.C. Chapter 17 within the 24-month period preceding the furnishing of the private medical treatment by SMC. See 38 C.F.R. § 17.1002(d). 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. § 17.52. The admission of a Veteran to a non-VA hospital at the expense of VA generally 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. What constitutes a prior authorization by VA is not expressly defined; however, the oral advice of a doctor or a nurse to go to a non-VA hospital is not the specific type of authorization contemplated by 38 C.F.R. § 17.54. Smith v. Derwinski, 2 Vet. App. 378, 378-79 (1992); but see Cantu v. Principi, 18 Vet. App. 92 (2004) (holding that the requirements under 38 C.F.R. § 17.54 for authorization were met when a VA physician arranged a veteran's transfer and transportation from VA outpatient clinic to private facility). In short, simple belief that the treatment was authorized, without any confirmation or action by VA, is not enough to show prior authorization. VA's General Counsel, in response to the question regarding "[w]ho has the authority to approve or authorize a request for private hospitalization at VA expense under 38 U.S.C. § 1703(a), and what type of action(s) is necessary to constitute prior authorization under 38 C.F.R. § [17.54]" has indicated that the requirements for obtaining prior authorization for private medical expenses are quite specific. In addition to meeting statutory requirements for reimbursement, any verbal authorizations must be confirmed in writing. See VA O.G.C. Concl. Op. 1-95 at paragraphs 16-17. In a June 2019 statement submitted in response to the Agency of Original Jurisdiction’s (AOJ) Statement of the Case, the Veteran asserted that he made a call to VA two weeks prior to going to the hospital on July 19, 2017. He states that he confirmed that he had coverage, and scheduled an appointment for August 2017. The Veteran continued that he asked the VA representative what he should do if he had a medical emergency before that date, and that she told him that if it was dire and he felt it was life threatening, he should go to the closest emergency room. He asserts that during the conversation, at no time did he get the impression that he would be financially responsible for an emergency visit to a non-VA facility. The Board finds that this advice does not constitute prior authorization for the medical services in question at the Shea Medical Center. While the Veteran credibly asserts that he was unaware that he would be responsible for expenses incurred for emergency care at a non-VA facility, the VA representative’s statement that he should seek treatment at the closest emergency room if he believe he was experiencing a life-threatening event is not the equivalent of authorization as contemplated by § 17.54. The Veteran has not asserted, and the record does not otherwise contain a writing reflecting that VA provided prior authorization for VA payment/reimbursement for the non-VA medical services provided to the Veteran on July 19, 2017. Thus, the cost of the services at a non-VA facility should not be covered as preauthorized care. See 38 U.S.C. § 1703(a); 38 C.F.R. § 17.52(a). When a veteran receives treatment at a non-VA facility without prior authorization, such as the case here, there are two statutes that allow for claimants to be paid or reimbursed for the medical expenses incurred for that treatment, 38 U.S.C. § 1728 and 38 U.S.C. § 1725. Application of either statute is generally dependent on whether the Veteran has an adjudicated service-connected disability. The Veteran is not in receipt of service connection benefits for any disabilities. As such, 38 U.S.C. § 1728 is not for application. Since the Veteran's private hospitalization was for a nonservice-connected disorder and there is not a service-connected disability that is total and permanent in nature, the only possible route to entitlement to unreimbursed medical expenses in this case stems from 38 U.S.C. § 1725, the Veterans Millennium Health Care and Benefits Act. Under this Act, payment or reimbursement of non-VA emergency medical services for nonservice-connected disorders for veterans without insurance is available if certain conditions are met. 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). Basic eligibility requires that a veteran be enrolled in the VA health care system and have “received medical services” under chapter 17 within the 24-month period preceding the furnishing of emergency treatment. 38 C.F.R. § 17.1002 (d). 38 U.S.C. § 1725(b). No reimbursement or payment of services not previously authorized will be made when such treatment was procured through private sources in preference to available VA or government facilities. 38 C.F.R. § 17.130. In the November 2019 Remand, the Board explained that the term “medical services” includes “preventative health services,” which in turn includes patient health education. See 38 U.S.C. §§ 1701(6)(D), 1701(9)(B). Further development conducted by the AOJ determined that the Veteran was enrolled in the VA health care system on March 2, 2016, and that a Veteran’s Health Handbook was issued to him on March 9, 2016. The AOJ was unable to obtain a copy of the exact handbook sent to the Veteran, and a sample version was associated with the claims file. The sample includes a section providing advice regarding “Understanding Your Medication,” laying out some advice and best practices. To the extent that this can be understood to constitute patient health education, and was received by the Veteran within the 24-month period prior to his emergency non-VA medical services, his basic eligibility for reimbursement of such services is established. Having found the Veteran generally eligible, the situation must still meet all the necessary criteria of 38 C.F.R. § 17.1002(a-c) to be entitled to reimbursement of such expenses. When considering the evidence of record, the Board finds that the claim must be denied, as a VA facility is found to have been feasibly available to the Veteran. The Veteran has not asserted that he tried and/or was unable to access emergency medical services from a VA facility on the date in question. Publicly-available maps demonstrate that the Veteran’s residence at the time was an approximate 22 minute or 12.7 mile drive from the Carl T. Hayden VA Medical Center Emergency Room, in comparison to the approximate 12 minute or 9.9 mile drive from the SMC. There is no indication as to why the Veteran would not have been able to travel to the VA emergency facility or that he made any attempt to seek care through VA before receiving medical treatment and evaluation through the non-VA facility. The Board is sympathetic to the Veteran's claim. However, the Board is bound by all applicable law and regulation. After carefully reviewing the Veteran's statements and the medical evidence of record, the Board finds that the preponderance of the evidence is against the claim of entitlement to payment or reimbursement of unauthorized medical expenses incurred at Shea Medical Center from July 19, 2017 to July 20, 2017. As the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved in the Veteran's favor; the appeal must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Solomon, 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.