Citation Nr: 18160408
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 16-50 960
DATE:	December 27, 2018
ORDER
Reimbursement or payment for medical expenses incurred due to non-VA medical care, on December 4, 2015, at Advocate BroMenn Medical Center (ABMC), is granted.
Reimbursement or payment for medical expenses incurred due to non-VA medical care, from December 9, 2015, through December 10, 2015, at ABMC, is granted.
FINDING OF FACT
The evidence is at least in relative equipoise as to whether the non-VA medical care at ABMC in December 2015 was for a condition of such nature that a prudent layperson would have reasonably expected that delay in obtaining the treatment would have been hazardous to health; and an attempt to use the nearest VA medical facility at that time would not have been considered reasonable by a prudent layperson. 

CONCLUSIONS OF LAW
1. Resolving all reasonable doubts in the Veteran’s favor, the criteria for establishing entitlement to reimbursement or payment for medical expenses incurred due to non-VA medical care, on December 4, 2015, at ABMC, have been met.  38 U.S.C. § 1725 (2012); 38 C.F.R. § 17.1002 (2017).
2. Resolving all reasonable doubts in the Veteran’s favor, the criteria for establishing entitlement to reimbursement or payment for medical expenses incurred due to non-VA medical care, from December 9, 2015, through December 10, 2015, at ABMC, have been met.  38 U.S.C. § 1725 (2012); 38 C.F.R. § 17.1002 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSIONS
The Veteran served on active duty from July 1984 to March 1988.   
This appeal to the Board of Veterans’ Appeals (Board) is from January and March 2016 decisions by the Department of Veterans Affairs (VA) Health Care System in Danville, Illinois. 
The Veteran requested a Board hearing in his September 2016 substantive appeal (via VA Form 9), but in a January 2017 statement, he withdrew such hearing request.  There is no outstanding hearing request.  38 C.F.R. § 20.704 (e) (2017). 
Medical Expense Reimbursement
Pertinent Law and Regulations
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 (2012); 38 C.F.R. § 17.52 (2017).
Further, in general, if VA is to provide payment or reimbursement of medical expenses incurred due to 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.
Whether treatment was authorized is a factual, not a medical, determination. Similes v. Brown, 5 Vet. App. 555 (1994).  
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; specifically, 38 U.S.C. §§ 1725 and 1728 (2012).  Application of either statute is generally dependent on whether the Veteran has an adjudicated service-connected disability.  
In the present case, 38 U.S.C. § 1725 applies given that the Veteran has not established service connection for the claimed emergency medical condition (i.e. abdominal pain).  
Under 38 U.S.C. § 1725, payment or reimbursement for emergency services for non-service-connected conditions in non-VA facilities may also be authorized.  38 C.F.R. §§ 17.1000-03.  To be eligible for reimbursement under this authority, all of the following conditions must be 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 that 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 has no coverage under a health-plan contract for payment or reimbursement, in whole or in part, 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 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 or in part, 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.
Id.; 38 C.F.R. § 17.1002; Staab v. McDonald, 28 Vet. App. 50 (2016) (invalidating the current version of 38 C.F.R. § 17.1002(f)).
Analysis 
As an initial matter, the record does not reflect, and the Veteran has not reported, that the non-VA medical care at ABMC, on December 4, 2015, and from December 9, 2015, through December 10, 2015, was authorized in advance.  See 38 U.S.C. § 1703 (2012); 38 C.F.R. § 17.52 (2017).  Therefore, 38 U.S.C. § 1725 applies. 
As background, on December 4, 2015, the Veteran sought emergency care at ABMC for “right lower quad pain.”  See December 4, 2015 emergency care note from ABMC.  He was discharged later that day.  On December 9, 2015, the Veteran returned to the same emergency care for abdominal pain and was discharged on December 10, 2015.  See December 10, 2015 discharge note from ABMC. 
The Agency of Original Jurisdiction (AOJ) denied the present claim based on its finding that a VA medical facility was feasibly available at the time of the claimed emergency medical events in December 2015.  There is no dispute that the Veteran has met the remaining conditions for payment or reimbursement of non-service-connected medical care under 38 U.S.C. § 1725, to include whether the claimed medical events at ABMC constituted an emergency.  See 38 C.F.R. §§ 17.1002(a)-(h); see also June 2016 Statement of the Case. 
Therefore, the remaining issue is whether a VA facility was feasibly available at the time of the medical events at ABMC in December 2015.    
The Board finds that, on December 4, 2015, and on December 9, 2015, a VA medical facility with an emergency department was not feasibly available at those times and that attempts to use this alternative service beforehand would not have been considered reasonable by a prudent layperson.  In this regard, as the Veteran has reported, see September 2016 Substantive Appeal (via VA Form 9), the nearest VA medical facility, located in Danville, Illinois, was nearly hundred miles from the Veteran’s residence.  The Veteran accordingly sought emergency care from ABMC, which was less than three miles away.  Under these circumstances, the Board resolves all reasonable doubts in the Veteran’s favor and finds that a VA medical facility with an emergency department equipped to provide the care needed was not feasibly available at the time of the medical events at ABMC in December 2015. 
Accordingly, the Board concludes that payment or reimbursement of the Veteran’s non-VA medical treatment at ABMC, on December 4, 2015, and from December 9, 2015, through December 10, 2015, is warranted.  His appeal is granted. 

 
MARJORIE A. AUER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. Kim, Associate Counsel 

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