Citation Nr: 18154178
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 16-24 561A
DATE:	November 29, 2018
Payment or reimbursement for the cost of non-VA medical care the Veteran received at St. Luke’s Woodlands in Houston, Texas from April 29, 2015 through May 6, 2015 is denied.
1. Payment or reimbursement of medical expenses incurred for the Veteran’s non-VA medical care at St. Luke’s Woodlands in Houston, Texas from April 29, 2015 through May 6, 2015 was not pre-authorized by VA.
2. VA facilities were feasibly available to provide the necessary treatment. 
The criteria for payment or reimbursement for unauthorized medical expenses incurred at St. Lukes Woodlands in Houston, Texas from April 29, 2015 through May 6, 2016 are not met.  38 U.S.C. §§ 1703, 1725, 1728, 5107; 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120, 17.121, 17.1002.

The Veteran served on active duty in the Army from March 1968 to November 1970.  
This appeal to the Board of Veterans’ Appeals (Board) is from a March 2016 decision by the Department of Veterans Affairs South Central VA Health Care Network.
The Veteran contends that he was in Weatherford, Oklahoma when he became ill and went to the emergency room.  He was told that he needed to be admitted.  At that time, he and a coworker immediately departed to Texas and went to the nearest hospital, which was St. Luke’s Woodlands, where he was admitted.  He contends that he informed the hospital that he was a Veteran; however, they did not attempt to transfer him to the VA facility in Houston.  The Veteran asserts that this is the fault of the hospital and that he should not be liable for St. Luke’s Woodlands rendering services without transferring him.  He contends that he was not in any condition to be relocated by himself.  He had surgery at St. Luke’s Woodlands and subsequently was released.  See June 2016 VA Form 9.
When VA facilities or other government facilities are not capable of furnishing economical hospital care or medical services because of geographic inaccessibility or because they are not capable of furnishing care or services required, VA may contract with non-VA facilities to provide the appropriate care.  38 U.S.C. § 1703; 38 C.F.R. § 17.52.
In general, if VA is to provide payment or reimbursement of medical expenses incurred in connection with a Veteran’s care at a non-VA hospital, the care must be authorized in advance.  See 38 U.S.C. § 1703; 38 C.F.R. § 17.54.  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.
As an initial matter, the record does not reflect, and the Veteran has not reported, that the non-VA medical care at St. Lukes Woodlands in Houston, Texas from April 29, 2015 through May 6, 2015 was authorized in advance.  See 38 U.S.C. § 1703; 38 C.F.R. § 17.52.
When, however, 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.  Application of either statute is generally dependent on whether the Veteran has an adjudicated service-connected disability.
The Veteran does not have a service-connected disability.  Additionally, the Veteran’s treatment was not for any injury or illness contracted in the course of a rehabilitative program.  Consequently, the Veteran is not eligible for payment or reimbursement under 38 U.S.C. § 1728 in this case.  See 38 C.F.R. § 17.120.  
Pursuant to 38 U.S.C. § 1725, payment or reimbursement for emergency services for non-service-connected conditions in non-VA facilities may be authorized if all of the following conditions are satisfied:
(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; and
(h) The veteran is not eligible for reimbursement under 38 U.S.C. § 1728 for the emergency treatment provided.
38 C.F.R. § 17.1002.
The criteria under 38 C.F.R. § 17.1002 are conjunctive, not disjunctive.  Therefore, all criteria must be met.  Melson v. Derwinski, 1 Vet. App. 334 (1991).  The Board finds that the Veteran’s claim for reimbursement fails because the medical care provided was not provided for a medical emergency as required by law and a VA facility was feasibly available for treatment.
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). 
The evidence shows that the Veteran’s symptoms included abdominal pain, nausea, and vomiting for two days while in Oklahoma.  He received treatment at Weatherford Regional Hospital in Oklahoma where a computed tomography (CT) scan showed a small bowel obstruction.  He then drove nine hours to be closer to home before receiving treatment at St. Lukes Woodlands in Houston, Texas on April 29, 2015.  He was ambulatory upon arrival, he described his pain as moderate, and denied vomiting since the trip.  A surgical procedure, specifically a hand assisted laparoscopy and lysis of adhesions, was performed on April 30, 2015.   He was discharged on May 6, 2015 with diagnoses of small bowel obstruction and pancreatic mass and ordered to follow up in one to two weeks.
The Board is sympathetic to the Veteran’s contention that he was not told by the St. Luke’s Woodlands that he should seek treatment from the VA upon reporting that he was a Veteran.  However, as the Veteran drove nine hours to seek treatment at St. Luke’s Woodlands, the Board finds that the Veteran did not expect that delay in seeking immediate medical attention would have been hazardous to life or health.  The Veteran does not contend, and the evidence does not show that another VA facility could not have provided the necessary medical attention.  The record shows that a VA facility located 37 miles away from St. Luke’s Woodlands was available to provide treatment.  There is no evidence of an attempt by the Veteran or St. Luke’s Woodlands to contact a VA facility for treatment or to transfer the Veteran for further treatment.  
As the facts do not meet the medical emergency requirement under 38 U.S.C. § 1725, reimbursement is prohibited.  An analysis of the remaining factors under 38 U.S.C. § 1725 is unnecessary given that the listed criteria are conjunctive and all factors must be satisfied.  See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive “and” in a statutory provision meant that all the conditions listed in the provision must be met).  

The Board finds that the preponderance of the evidence is against payment or reimbursement of unauthorized medical expenses incurred during non-VA medical care at St. Lukes Woodlands in Houston, Texas from April 29, 2015 through May 6, 2015.  There is no doubt to be resolved and his claim must be denied.
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	C. Samuelson, Counsel 

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