Citation Nr: 21032123 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 13-28 435 DATE: May 25, 2021 ORDER Entitlement to medical reimbursement for treatment at St. Catherine's Hospital on September 5, 2012 is granted. FINDING OF FACT The Veteran received emergent care on September 5, 2012 at St. Catherine's Hospital that was not related to a service-connected disability; a VA facility was not feasibly available, considering the seriousness of the symptoms presented. CONCLUSION OF LAW The criteria for entitlement to medical reimbursement for treatment at St. Catherine's Hospital on September 5, 2012 have been 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 in the United States Army from July 1988 to January 1999. For his meritorious service, the Veteran was awarded (among other decorations) the Army Commendation Medal, the Army Achievement Medal, the Southwest Asia Service Medal, and the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2013 decision from a Department of Veterans Affairs (VA) Medical Center. The Veteran participated in a February 9, 2021 Board of Veterans' Appeals (Board) hearing before a Veterans Law Judge (VLJ) that is no longer with the Board. While VLJs who chair hearings are required to participate in the decision, given the positive disposition herein, the Board finds no prejudice to the Veteran to decide the claim. The Veteran is claiming entitlement to reimbursement for the costs (under $800) of unauthorized non-VA emergency treatment provided to the Veteran on September 5, 2012 at St. Catherine's Hospital for treatment of a non-service connected condition. In this case, there is no indication in the record or assertions from the Veteran that prior authorization was given for the treatment at issue. In the absence of prior authorization for medical services, there is no factual or legal basis for payment or reimbursement by VA under 38 U.S.C. § 1703 and 38 C.F.R. §§ 17.52, 17.53, and 17.54 for contracted medical services at a non-VA facility. There is no medical evidence of record, nor assertion by the Veteran, that the unauthorized non-VA emergency treatment was provided for an adjudicated service-connected disability; a non-service-connected disability associated with and held to be aggravating a service-connected disability; any disability of a Veteran has a total disability permanent in nature from a service-connected disability; any illness, injury, or dental condition of a Veteran who is a participant in a vocational rehabilitation program and is medically determined to have been in need of care or treatment to make possible the Veteran's entrance into a course of training, or prevent interruption of a course of training or hasten the return to a course of training which was interrupted because of such illness, injury, or dental condition.. Because the Veteran does not meet the criteria for reimbursement of the subject non-VA emergency treatment under 38 U.S.C. § 1728, the Veteran's claim for payment must be considered under 38 U.S.C. § 1725, as implemented by 38 C.F.R. §§ 17.1000-17.1008. Pursuant to 38 C.F.R. § 17.1002, VA may make payment or reimbursement of costs for emergency treatment for non-service-connected disabilities furnished in non-VA facilities, but only if all the following criteria are met: (a) The 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 (this standard would be met if there were 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 placing the health of the individual in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part); (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 (as an example, these conditions would be met by evidence establishing that a veteran was brought to a hospital in an ambulance and the ambulance personnel determined the nearest available appropriate level of care was at a non-VA medical center); (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 (this condition cannot be met if the veteran has coverage under a health-plan contract but payment is barred because of a failure by the veteran or the provider to comply with the provisions of that health-plan contract, e.g., failure to submit a bill or medical records within specified time limits, or failure to exhaust appeals of the denial of payment); (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; (h) The veteran is not eligible for reimbursement under 38 U.S.C. § 1728 for the emergency treatment provided (38 U.S.C. § 1728 authorizes VA payment or reimbursement for emergency treatment to a limited group of veterans, primarily those who receive emergency treatment for a service-connected disability). 38 C.F.R. § 17.1002. In the instant case, resolving all doubt in favor of the Veteran, all of the criteria listed under 38 C.F.R. § 17.1002 have been met. The evidence of record shows the Veteran experienced an onset of arm and leg numbness; thereafter, he contacted a Dodge City VA nurse, and was instructed to report to the closest emergency room based on the seriousness of the symptoms he was reporting. According to the Veteran's written appeal, the closest VA facility was an hour away at the time he reported for emergency treatment. The private hospital records show that the Veteran's symptoms were considered orthopedic on examination. On review, the existence of a VA facility does not in and of itself mean that the VA facility was feasibly available. Cotton v. Brown, 7 Vet. App. 325, 327 (1995). Whether a VA facility was "feasibly available" must be made after consideration of such factors as the urgent nature of the veteran's medical condition and the length of any delay that would have been required to obtain treatment from a VA facility. Id. at 327-28. Taking notice of the travel time involved as contended by the Veteran in his appeal, it is determined that travel to the further VA facility would not have been considered reasonable by a prudent layperson. 38 C.F.R. § 17.1002(c). The symptoms as testified to could have related to more serious conditions that warranted prompt medical attention, as the Veteran contends he was so advised by the nurse. As such, the criteria for payment or reimbursement of the costs the episode of private treatment have been met, and the appeal is granted. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. C. KING, 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.