Citation Nr: 22015754 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 17-39 837A DATE: March 18, 2022 ORDER Entitlement to payment or reimbursement for medical treatment incurred on March 31, 2016, at Capital Regional Medical Center is granted. FINDINGS OF FACT 1. The treatment received by the Veteran at Capital Regional Medical Center on March 31, 2016, was a follow-up service of a prior medical emergency. 2. Given the Veteran's state of mind, it is determined that VA facilities were not feasibly available for treatment despite the Veteran's best efforts to receive the necessary follow-up treatment at a VA or other Federal facility. CONCLUSION OF LAW The criteria for reimbursement or payment of the costs for non-VA medical care provided by Capital Regional Medical Center on March 31, 2016, have been met. 38 U.S.C. §§ 1725, 1728; 38 C.F.R. §§ 17.1000-17.1008. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty from July 1987 to July 1991. The issue is on appeal before the Board of Veterans' Appeals (Board) from a May 2016 notification letter issued by the North Florida/ South Georgia Veterans Health System where the claim was denied. 1. Entitlement to payment or reimbursement for medical treatment incurred on March 31, 2016, at Capital Regional Medical Center 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 evidence shows that the Veteran received sutures for a hand laceration on March 16, 2016. Upon discharge, the Veteran was instructed to have his sutures removed in 10 to 14 days (March 26, 2016, to March 30, 2016). The Veteran's mother contacted VA Patient Aligned Care Team (PACT) on Monday, March 28, 2016, to request an appointment with the Veteran's PCP to have his sutures removed. The PACT nurse informed the Veteran's mother that the nurse would contact her on Wednesday, March 30, 2016, only if the PCP approved this visit (emphasis added). Neither the Veteran nor his mother heard from the PACT nurse, and he went to Capital Regional Medical Center for his follow-up appointment on March 31, 2016, at 6:30 PM. The PACT nurse did not return the phone call relaying the PCP's approval until Friday, April 1, 2016. When a Veteran receives treatment at a non-VA facility without prior authorization, two statutes allow for payment or reimbursement for the medical expenses incurred for that treatment, 38 U.S.C. §§ 1725 and 1728. This treatment was not pre-authorized by VA. See 38 C.F.R. § 17.52(a), generally indicating that VA must authorize non-VA treatment at private facilities. Also, the Veteran does not have a total and permanent service-connected disability rating and this treatment was not for any service-connected disability or for any disability that was aggravating a service-connected disability. Likewise, the treatment was not for any injury or illness incurred in relation to participation in a vocational rehabilitation program. Consequently, the Veteran is not eligible for payment or reimbursement for the claimed emergency treatment under 38 U.S.C. § 1728. See 38 C.F.R. § 17.120. Nonetheless, payment or reimbursement for private emergency medical treatment may be considered under 38 U.S.C. § 1725. There are three primary requirements for payment or reimbursement under this statute. See 38 C.F.R. § 17.1002(a-c). First, the treatment in question must have occurred in an emergency department or similar facility held out as providing emergency treatment to the public. 38 C.F.R. § 17.1002(a). Second, 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. 38 C.F.R. § 17.1002(b). Third, a VA or federal facility was not feasibly available to provide the treatment. 38 C.F.R. § 17.1002 (c). All three requirements must be met before reimbursement can be authorized. See Zimick v. West, 11 Vet. App. 45, 49 (1998); Malone v. Gober, 10 Vet. App. 539, 547 (1997). The Agency of Original Jurisdiction (AOJ) does not dispute the first prong but disputes the emergent nature of the Veteran's condition and whether a VA or Federal facility was feasibly available to provide treatment. In the May 2016 initial denial and July 2016 statement of the case, the AOJ determined that the Veteran's condition was non-emergent, both when the Veteran initially sought treatment and for the follow-up date of service on appeal, and that a VA or Federal facility was feasibly available. Addressing the AOJ's contention on the emergent nature of the Veteran's condition, both medical and lay evidence may be considered in a prudent layperson evaluation for determining what constitutes a medical emergency. That is, VA should weigh the totality of the circumstances to determine whether a prudent layperson would consider the situation emergent. Swinney v. Shinseki, 23 Vet. App. 257, 264-266 (2009). Here, the medical and lay evidence demonstrate that the Veteran's condition was emergent, and a delay in seeking immediate medical attention would have been hazardous to life or health, under the prudent layperson standard. The Veteran had sought and received emergency treatment for his hand laceration 15 days prior to the date of service on appeal. He received sutures. In the follow-up directions provided upon discharge, the non-VA emergency room physician had instructed the Veteran to take his sutures out 10 to 14 days after the initial treatment. The Veteran's mother tried to arrange a follow-up appointment for suture removal and was told by VA that if they did not hear back from VA, then the follow-up appointment had not been approved. The Veteran waited for three days following the phone call and one day beyond the 14-day time window, as provided in his discharge instructions, before going to the non-VA facility to have his sutures removed. Regarding the AOJ's contention as to whether a VA facility was "feasibly available," this is determined 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. Cotton v. Brown, 7 Vet. App. 325, 327-28 (1995). Other factors to consider include whether a prudent layperson would consider an attempt to use a VA facility beforehand or obtain prior VA authorization for the services required would have been reasonable, sound, wise, or practicable, or whether treatment had been or would have been refused. Regarding the relative distance of the travel involved, the Board may take judicial notice of facts, as compared to evidence, which are not subject to interpretation. See Yeoman v. West, 140 F.3d 1443 (Fed. Cir. 1998); Dedicatoria v. Brown, 8 Vet. App. 441 (1995). As discussed above, the Veteran's mother contacted on Monday, March 28, 2016, to request an appointment with the Veteran's PCP to have his sutures removed. The PACT nurse informed the Veteran's mother that the nurse would contact her on Wednesday, March 30, 2016, only if the PCP approved this visit (emphasis added). The Veteran nor his mother had not heard from the PACT nurse, and he went to Capital Regional Medical Center for his follow-up appointment on March 31, 2016, at 6:30 PM. The PACT nurse did not return the phone call relaying the PCP's approval until Friday, April 1, 2016, or two days after the PACT nurse had she would call, contingent upon approval. The Board finds that a prudent layperson would have assumed, based on VA instruction, that the Veteran's PCP had not approved the follow-up appointment given that the call was not returned in a timely manner. Furthermore, although the closest VA facility is a little less than 18 miles away, it closed at 4:30 PM, which is an hour after the Veteran was admitted for treatment at Capital Regional Medical Center. See https://www.va.gov/find-locations. Therefore, the Board concludes that in evaluating the evidence, the non-VA treatment received by the Veteran on March 31, 2016, constitutes a medical emergency under the prudent layperson standard. Given the Veteran's state of mind, discharge instructions following his initial medical emergency, and admission symptoms, under the prudent layperson standard, the Board finds that an actual medical emergency existed in this situation; and while a VA facility was not much further away, the VA facility was closed at the time the Veteran was admitted. Also, the Veteran had attempted to receive follow-up treatment from VA, but VA did not let the Veteran know that he was approved for treatment until two days after the promised return call date. There are additional criteria that must be met in order to authorize payment or reimbursement under 38 U.S.C. § 1725. However, there is no indication that the Veteran failed to meet any of these additional criteria. 38 C.F.R. § 17.1002(d-h). (Continued on next page) As such, the Veteran is deemed to have met the requirements for medical reimbursement or payment under 38 U.S.C. § 1725 for unauthorized non-VA medical treatment incurred on March 31, 2016, at Capital Regional Medical Center, and the appeal is accordingly granted. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Lee 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.