Citation Nr: 18139639
Decision Date: 09/28/18	Archive Date: 09/28/18

DOCKET NO. 14-40 935A
DATE:	September 28, 2018
ORDER
Entitlement to payment or reimbursement of the cost of medical services received at Florida Hospital (FH) in Celebration, Florida on May 3, 2014 is denied.
FINDING OF FACT
The treatment received on May 3, 2014 at FH was not for a medical emergency.  
CONCLUSION OF LAW
The criteria for entitlement to payment or reimbursement of the cost of medical services received at Florida Hospital in Celebration, Florida on May 3, 2014 have not been met.  38 U.S.C. § 1728; 38 C.F.R. § 17.120.   
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from January 1968 to April 1968.  
This matter is on appeal before the Board of Veterans Appeals (Board) from a July 2014 decision of the Department of Veterans Affairs Medical Center (VAMC) in Orlando, Florida.
On his December 2014 Form 9, the Veteran requested a Board videoconference hearing.  That hearing was scheduled to occur on September 13, 2018.  However, in August 2018 correspondence, the Veteran cancelled the hearing and asked that a decision be made based on the evidence of record.  
The Board notes that the Veteran is represented in this matter by his wife on a one-time basis pursuant to the provisions of 38 C.F.R. § 14.630.  The Board recognizes the representation.  
Entitlement to payment or reimbursement of the cost of medical services received at Florida Hospital (FH) in Celebration, Florida on May 3, 2014. 
The Veteran has claimed payment or reimbursement for treatment he received at FH on May 3, 2014.  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.  However, an exception to the pre-authorization requirement is present in certain emergency situations.  See 38 U.S.C. §§ 1725, 1728.  Because the Veteran was assigned a total and permanent rating for his service-connected disabilities at the time of the FH treatment, he is eligible for consideration under 38 U.S.C. § 1728 for payment and reimbursement of the cost of the treatment.  38 C.F.R. § 17.120(a).  Under this statute and the accompanying regulations, payment or reimbursement is warranted when the following additional criteria are met:
(b) The services were rendered in a medical emergency of such 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 is met by 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; and  
(c) No VA or other Federal facility was feasibly available and an attempt to use them beforehand or obtain prior VA authorization for the services required would not have been reasonable, sound, wise, or practicable.  38 C.F.R. § 17.120(b-c). 
The evidence shows that the Veteran’s wife transported him to the FH emergency room on May 3, 2014 and that they arrived around 12:30 p.m.  Upon examination at the ER, the Veteran was noted to have a confluent, erythematous rash of the groin and bilateral upper extremities without discharge.  After examination and lab work, the Veteran was ultimately diagnosed with a fungal infection.  He was prescribed a number of medications, including fluconazole, famotidine, Benadryl and hydroxyzine, and was discharged from the ER to home around 6:30 p.m.  
In a November 2014 notice of disagreement, the Veteran’s wife indicated that the Veteran suffered from an allergic reaction to medications that were administered to him while hospitalized from April 27, 2014 to April 29, 2014.  Subsequently, on May 3, the reaction got worse and she felt she had no choice but to bring him to the FH ER as VA facilities were not feasibly available.  On a subsequent December 2014 Form 9, the Veteran’s wife noted that the Veteran’s allergic reaction began on Friday evening May 2, 2014 and worsened through the night.  When the Veteran woke up on Saturday May 3rd, his body was covered in a rash.  The Veteran’s wife noted that he was not able to keep from scratching the affected areas, including the genitals, due to the itching and swelling from the rash.  She indicated that he could not have waited until Monday to be seen at a VA facility.  Additionally, she noted that the Veteran was suffering from anxiety because of the rash and took his anti-anxiety medications before they traveled to the FH ER, which helped relax him physically and mentally.    
The May 3, 2014 emergency physician record from FH indicated that the Veteran’s chief complaint was a skin rash that began on April 29.  The rash was described as still present, generalized, itchy, and possibly related to medication.  It was located in the groin.  Upon physical examination, the Veteran was in no acute distress and was alert.  It was also noted that the Veteran had a similar rash before.  He was discharged with a diagnosis of fungal rash.
The above summarized evidence does not show that FH services were provided for a medical condition manifesting itself by acute symptoms of sufficient severity 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 serious jeopardy to health, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part.  In this regard, it is evident that the symptoms from the rash were limited to itching and confluent erythema (i.e. patches of superficial reddening of the skin), along with some level of anxiety.  In the absence of other symptomatology, a prudent layperson would not expect that immediate medical attention was necessary.  Faced with these fairly limited symptoms, a prudent layperson with an average knowledge of health or medicine would not have felt it necessary to immediately go to an ER.  Rather, such an individual would begin with more limited action such as calling a VA advice nurse or similar on-call staff person to determine if the rash could continue to be monitored over the weekend and to determine whether the symptoms of the rash could be treated with over-the-counter medication until the Veteran could be seen by a VA outpatient provider the following Monday.  Also, regarding the anxiety the Veteran was experiencing, it is evident that the Veteran was able to at least partially ameliorate this symptom by taking his anti-anxiety medications. 
(Continued on the next page)
 
The Board is bound to follow the controlling regulations.  This legal authority does not permit the Board to grant payment or reimbursement of previously unauthorized private medical expenses in the absence of a medical emergency.  38 C.F.R. § 17.120(c).  Accordingly, the appeal must be denied.
 
S. HENEKS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Dan Brook, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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