Citation Nr: 22014852 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 19-18 844 DATE: March 15, 2022 ORDER Entitlement to reimbursement of the cost of September 21, 2018, non-Department of Veterans Affairs (VA) emergency care received at Mother Frances Hospital is granted. FINDINGS OF FACT 1. The Veteran received care on September 21, 2018, at Mother Frances Hospital that was unrelated to a service-connected disability. 2. The claim relates to evaluation and treatment for a right shoulder condition manifested by pain of such a nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have placed the health of the Veteran in serious jeopardy. 3. A VA or other Federal facility was not feasibly available and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson. CONCLUSION OF LAW The criteria for reimbursement for September 21, 2018, unauthorized emergency treatment provided at Mother Frances Hospital have been met. 38 U.S.C. §§ 5107, 1725; 38 C.F.R. §§ 17.1000-17.1008. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1969 to May 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a VA Agency of Original Jurisdiction (AOJ) decision. The Board notes that the Veteran filed a December 2020 VA Form 10182 requesting review of claims for payment for treatment furnished on August 16, 2018, September 19, 2018, and October 26, 2018, at Mother Frances Hospital that are not subject to this appeal. The Veteran is seeking reimbursement for medical expenses related to treatment for right shoulder pain at Mother Frances Hospital on September 21, 2018. He asserts that he sought non-VA care after initially seeking treatment from his VA provider for his right shoulder complaints because the VA emergency department was a two hour drive from his home and he believed he was experiencing an emergency due to severe pain. He also reported that he had since received authorization for non-VA care for his right shoulder and indicated that he met the criteria for the Veterans Choice Program, which eligibility criteria includes consideration of the distance from the closest VA medical facility to a veteran's residence. See December 2018 VA Clinical Tracking Record; June 2019 VA Form 9; see also 38 C.F.R. § 17.1510(b)(3). Initially, it is noted that this appeal will not be reviewed under the regulations outlining the Veterans Choice Program, as there is no indication the Veteran received prior VA authorization for the September 21, 2018, treatment provided by Mother Frances Hospital. 38 U.S.C. § 1703(a) (2018). Further, the provisions outlined in 38 U.S.C. § 1728 do not apply because the Veteran was not service-connected for any disability or participating in a vocational rehabilitation program. Rather, the Veteran's request for payment is considered under 38 U.S.C. § 1725 for reimbursement of non-VA emergency care. The evidence is at least in equipoise that reimbursement for the cost of the non-VA care received at Mother Frances Hospital on September 21, 2018, is warranted. See 38 C.F.R. § 17.1002 (substantive conditions for reimbursement include: (a) emergency services were provided in a hospital emergency department; (b) the claim 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 facility was not feasibly available and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson; (d) the veteran was enrolled in the VA health care system and had received medical services within the 24-month period preceding the emergency treatment; (e), the veteran is financially liable to the provider of emergency 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) the claimant has exhausted all remedies reasonably available against a third party for payment if emergency treatment was related to an accident or work-related injury; and, (h) the veteran is not eligible for reimbursement under 38 U.S.C. § 1728). The AOJ denied the claim due to determinations that the services provided to the Veteran were not related to 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 because a VA or other Federal facility was feasibly available. 38 C.F.R. § 17.1002(b), (c); see January 2019 decisional letter; June 2019 Statement of the Case (SOC). There is no dispute that the Veteran is the proper claimant who filed a claim for reimbursement in accordance with 38 C.F.R. § 17.1004. Further, six of the eight substantive conditions for reimbursement under 38 U.S.C. § 1725 were also undisputed by the AOJ and are satisfied by the evidence of record. 38 C.F.R. § 17.1002(a), (d)-(h). With regard to condition (a), the Veteran was treated at the Mother Frances Hospital's emergency department. See September 21, 2018, Christus Mother Frances Hospital Emergency Department treatment records. Substantive conditions (d), (e), and (f) are satisfied by billing statements documenting the Veteran's personal liability for the emergency treatment and that he did not have any other insurance coverage other than VA. VA treatment records also demonstrate ongoing VA care. See September 18, 2018, VA treatment records (reporting right shoulder pain). Substantive condition (g) is not applicable because this treatment was not related to an accident or work-related injury. Substantive condition (h) is satisfied because the Veteran was not eligible for reimbursement under 38 U.S.C. § 1728; service connection was not in effect for any disability and his care was unrelated to participation in a vocational rehabilitation program. 38 C.F.R. § 17.1002(h); see 38 C.F.R. § 17.120. With regard to substantive condition (b), the Veteran stated that he sought treatment from VA for his right shoulder pain but turned to local non-VA emergency department care when he believed the condition constituted an emergency due to increased pain. See December 2018 Clinical Tracking Record. Mother Frances Hospital treatment records note the Veteran's reports that his right shoulder pain was not alleviated by over the counter medication or the medication provided to him by his primary care physician and diagnosed acute right shoulder pain. This is consistent with September 18, 2018, VA treatment records that note the Veteran's reports of right shoulder pain, assessed right shoulder osteoarthritis, and prescribed oral and topical medication. See September 2018 VA treatment records. The Board notes the Veteran is competent to report what he personally observes, to include what he saw and felt. Layno v. Brown, 6 Vet. App. 465, 471 (1994). Moreover, his reports of severe right shoulder pain that resulted in a September 21, 2018, visit to Mother Frances hospital are consistent with an addendum VA treatment record from November 2018 that reported an October 2018 private MRI report found multiple right shoulder tendon tears. The Board finds a prudent layperson would have reasonably expected that a delay in seeking immediate medical attention could have been hazardous due to increased, severe pain. 38 C.F.R. § 17.1002(b) (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). With regard to substantive condition (c), the Veteran also explained that the closest VA Medical Center was a two hour drive from his residence and that the Mother Frances Hospital facility was much closer to his home. See December 2018 Clinical Tracking Record. The Board finds such statements credible as they are supported by other evidence of record, including the November 2018 VA treatment record indicating the Veteran would likely receive additional treatment for the right shoulder through the Choice Program due to his commute burden. The Board finds a prudent layperson would not have reasonably considered attempting to drive to a VA facility before seeking treatment at the non-VA emergency departments. The Board resolves any doubt in favor of the Veteran and concludes that the substantive criteria (b) and (c) have been met for the September 21, 2018, episode of care on appeal. 38 U.S.C. § 5107. The claim for reimbursement of the cost of unauthorized non-VA medical care incurred by the Veteran at Mother Frances Hospital on September 21, 2018, is granted, subject to the limitations on reimbursement outlined in 38 U.S.C. § 1725(c)(4). 38 U.S.C. §§ 1725, 5107; 38 C.F.R. §§ 17.1000-17.1008. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Odya-Weis 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.