Citation Nr: 22016379 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 17-46 597A DATE: March 22, 2022 ORDER Entitlement to payment for non-VA medical services provided to the Veteran on April 19, 2016 is denied. FINDINGS OF FACT 1. The non-VA medical care provided on April 19, 2016 was not pre-authorized by VA. 2. The medical event for which the Veteran sought treatment on April 19, 2016 was not of such a nature that a reasonable layperson would expect that delay in seeking immediate medical attention would have been hazardous to life or health. CONCLUSION OF LAW The criteria for entitlement to payment for non-VA medical care provided to the Veteran on April 19, 2016 have not been met. 38 U.S.C. §§ 1703, 1725, 1728; 38 C.F.R. §§ 17.1000-17.1008. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from February 1986 to May 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 decision by a Department of Veterans Affairs Medical Center (VAMC). On her VA Form 9, Appeal to Board of Veterans' Appeals, the Veteran elected an optional Board hearing to be held by live videoconference at a local VA office. The Veteran was previously scheduled to appear at a hearing in January 2022, with notice letters regarding the scheduled hearing sent to the Veteran and her representative, but the Veteran did not report to the hearing. The record does not reflect that the Veteran has requested that the hearing be rescheduled, and the request is deemed withdrawn. Entitlement to payment for non-VA medical services provided to the Veteran on April 19, 2016 is denied. For care furnished prior to June 6, 2019, such as the care at issue in the present case, the provisions of 38 C.F.R. § 17.52 apply. 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. The Veteran has not asserted, and the record does not otherwise demonstrate that she requested authorization before going to the non-VA hospital on April 19, 2016, or did so within 72 hours following such care. A VA treatment record from the day following documents that the Veteran discussed having to go to the private emergency room at "Largo Medical recently for a panic attack," but does not clearly indicate that it was the day before. While such notification took place within 72 hours, there is no indication that authorization for payment of the non-VA expense was requested. Nevertheless, an application for authorization made within the 72 hours following admission may only be deemed prior authorization in the case of an emergency which existed at the time of admission. See 38 C.F.R. § 17.54(a). As will be discussed in greater detail, below, the April 19, 2016 medical care is not found to be for a medical emergency, and therefore, this provision is inapplicable. The episode of non-VA care in question was thus not pre-authorized, and reimbursement under 38 U.S.C. § 1703 is unavailable. 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. Under 38 U.S.C. § 1728, VA may reimburse Veterans entitled to hospital or medical services for the reasonable value of "emergency treatment" when such services that are provided by a non-VA facility if: (1) such care or services were rendered in a medical emergency of such nature that a prudent layperson would reasonably expect that delay in seeking immediate medical attention would be hazardous to life or health; (2) such care or services were rendered to a Veteran in need thereof (A) for an adjudicated service-connected disability, (B) for a nonservice-connected disability associated with and held to be aggravating a service-connected disability, (C) for any disability of a Veteran who has a total disability permanent in nature from a service-connected disability, or (D) for any illness, injury, or dental condition in the case of a Veteran who (i) is a participant in a vocational rehabilitation program and (ii) is medically determined to have been in need of care or treatment to make possible such 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; and (3) Department or other Federal facilities were not feasibly available, and an attempt to use them beforehand would not have been reasonable, sound, wise, or practical, or treatment had been or would have been refused. 38 U.S.C. §§ 1725, 1728. The care will be found to have been provided in a "medical emergency" where the medical condition manifests 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. 38 C.F.R. § 17.120. 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). Review of the record demonstrates that in April 2016, at the time of the non-VA medical treatment at issue, the Veteran was in receipt of service connection benefits for disabilities that combined to a 100 percent rating, to include conversion disorder, for which she was rated 100 percent disabled. She is thus eligible for reimbursement of non-VA treatment expenses under 38 U.S.C. § 1728 if such care qualified as emergency treatment and a VA facility was not feasibly available to the Veteran at the time. VA treatment records from April 9, 2016 show that the Veteran reported to VA's emergency department a little more than one week before the episode of care in question, stating that she wanted to speak to a doctor about her conversion disorder and increased stress and symptoms related to receiving a letter from the Social Security Administration pertaining to her receipt of Social Security disability benefits. An emergency provider report from the April 19, 2016 episode of care has been added to the file. It was noted that the Veteran presented to the emergency department with complaint of feeling overwhelmed with life and feeling like she has not had anyone she can talk to and did not have any real friends. It was noted that the Veteran had a diagnosis of depression and conversion disorder, had not been on medication and normally felt able to handle it on her own, and did not want any medication. She denied chest pain, shortness of breath, nausea, vomiting, diarrhea, and headache. On a focused review of systems, it was noted that she reported anxiety, depression, and stress, but denied hallucinations and homicidal or suicidal ideation. On physical examination, she was noted to be anxious, but to have normal cognitive function, judgment/insight, and thought content. Her condition was noted to be improved/resolved on re-evaluation approximately 25 minutes after first arriving at the emergency department, and it was noted that she had an appointment at the VA the next day, and would be discharged home with Ativan, for use as needed. On her Notice of Disagreement, the Veteran wrote that she received very bad new related to her godson's legal matters on the date in question, and that weeks prior, she began to experience recurring symptoms in her body of weakness in her legs, and tingling and burning sensation in her feet. She asserted that on April 19, 2016, she was having a panic attack, and knew she needed to seek mental health treatment, which was her goal when she dialed 911. She additionally asserted that she told the ambulance medics that she was a disabled Veteran, but that while enroute to the VA Bay Pines Hospital, the dispatcher relayed that VA was not taking patients. The Board finds that the evidence of record persuasively demonstrates that the Veteran's condition on April 19, 2016 was not of such a nature that a prudent layperson would expect that delay in seeking immediate medical attention would have been hazardous to life or health. The Veteran asserts that she was experiencing significant anxiety and a panic attack on the date in question, and felt the need to seek mental health treatment, but did not explain why she felt her condition required immediate medical intervention, particularly when she had an existing appointment with a VA mental healthcare provider for the following day. According to her statements made to VA healthcare providers on April 9, 2016 and in her NOD, the Veteran had been experiencing heightened levels of stress and related low back pain and lower extremity symptoms over the weeks leading up to April 19, 2016. While the Veteran asserts that she called 911 upon having a "panic attack," the private emergency department records do not reflect that she presented with any apparent distress other than having an anxious mood/affect (noting on physical examination that she was awake, alert, and well appearing, with normal heart rate and breath sounds, and was fully oriented, with normal speech, cognitive function, judgment and insight, and thought content). While the Board finds no reason to doubt the Veteran's assertion that she experienced heightened anxiety and a panic attack on the date in question, there is nothing in the Veteran's description of her symptoms that would indicate she believed herself to be in imminent peril such that the brief delay needed in order for her to contact VA, or even to wait for the appointment scheduled for the next day, could have led to further injury or death. The non-emergent nature of her condition is further supported by a notation in the file that the Veteran was transported via ambulance with no lights or sirens for evaluation of complaint of feeling emotionally and mentally overwhelmed. Given these circumstances, the Board finds that a prudent layperson would not have expected a delay in seeking immediate medical attention to have been hazardous to life or health. Therefore, payment for the April 19, 2016 episode of care is unavailable under 38 U.S.C. § 1728, regardless of whether a VA facility was feasibly available at the time. As payment for non-VA medical care under 38 U.S.C. § 1725 also requires that the non-VA medical care consists of emergency treatment, the Veteran also does not qualify under that section. Accordingly, the Board finds that the evidence of record persuasively weighs against finding that the non-VA medical care provided on April 19, 2016 was either pre-approved or qualifies as emergency treatment. Payment by VA for the non-VA medical expenses must therefore be denied. See 38 U.S.C. §§ 1703, 1725, 1728. 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.