08-03 534

Citation Nr: 1101573 Decision Date: 01/13/11 Archive Date: 01/20/11 DOCKET NO. 08-03 534A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Biloxi, Mississippi THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred as a result of treatment at Sacred Heart Hospital on January 28, 2006. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Pansiri, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1971 to November 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 administrative decision issued by the Department of Veterans Affairs (VA) Medical Center in Biloxi, Mississippi, which denied entitlement to the benefit currently sought on appeal. The Board notes that the Veteran requested a hearing before a member of the Board sitting at the RO (Travel Board) and was notified that a hearing was scheduled for May 2006. See July 2009 Board Hearing Notification Letter; see also February 2008 "Appeal to Board of Veterans Appeals," VA Form 9. The Veteran subsequently withdrew her hearing request. See July 2009 TypeWritten Letter from the Veteran. No further requests for hearings are of record. As such, the Board finds that the Veteran's hearing request is withdrawn. FINDINGS OF FACT 1. The Veteran is service-connected for hypertension, rated as 30 percent disabling; and degenerative disc and joint disease of the lumbar spine, rated as 10 percent disabling; for a combined disability rating of 40 percent disabling. 2. Payment or reimbursement of the cost of the private medical treatment received on January 28, 2006, was not authorized in advance by VA. 3. The non-VA medical treatment at Sacred Heart Hospital for lower back pain on January 28, 2006, was emergent treatment for a service-connected disability such that delay would have been hazardous to the Veteran's life or health. 4. VA or other federal facilities were not feasibly available to the Veteran on January, 28, 2006, as the nearest VA facility was closed and all other VA facilities were at least 100 miles away. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for payment or reimbursement for medical services provided by Sacred Heart Hospital on January 28, 2006, have been met. 38 U.S.C.A. §§ 1703 , 1725, 1728, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 17.52 , 17.1000-17.1002 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board grants in full the benefit sought on appeal, specifically entitlement to payment or reimbursement of unauthorized medical expenses incurred as a result of treatment at Sacred Heart Hospital on January 28, 2006. As such, no discussion of VA's duty to notify or assist is necessary. The Veteran seeks payment or reimbursement for medical services provided for complaints of severe low back pain in a non-VA facility (Sacred Heart Hospital) on January 28, 2006. Generally, the admission of a Veteran to a non-VA hospital at VA expense must be authorized in advance. See 38 C.F.R. § 17.54 (2010). Here, the Veteran's treatment at the non-VA facility was not authorized in advance as there is no indication that VA authorization was obtained prior to this particular admission, or within 72 hours thereafter, for the medical services provided to the Veteran for which she is now seeking payment or reimbursement. However, the outcome of this appeal is still favorable to the Veteran as the evidence of record reveals that the Veteran sought treatment for a service-connected disability, the non-VA treatment was of an emergent nature, and a VA or other Federal facility was not feasibly available. Congress has authorized the reimbursement or payment for unauthorized emergency medical treatment of Veterans, under two statutory provisions, 38 U.S.C.A. § 1728 and 38 U.S.C.A. § 1725 . 38 U.S.C.A. § 1728 applies to Veterans who have been granted service connection for at least one disability at the time they sought treatment or who were participants in a vocational rehabilitation program. In this case, the Veteran is serviceconnected for hypertension, rated as 30 percent disabling; and degenerative disc and joint disease of the lumbar spine, rated as 10 percent disabling; for a combined disability rating of 40 percent disabling. As such, 38 U.S.C.A. § 1728 is applicable in this case, and no further discussion of payment under 38 U.S.C.A. § 1725 (which governs payment where a Veteran has not been granted service connection for the disorder treated or is not in receipt of total compensation) is necessary. Under 38 U.S.C.A. § 1728 (a) and 38 C.F.R. § 17.120 , VA may reimburse Veterans for unauthorized medical expenses incurred in non-VA facilities where: (a) For Veterans with service connected disabilities. Care or services not previously authorized were rendered to a Veteran in need of such care or services: (1) For an adjudicated serviceconnected disability; (2) For nonservice-connected disabilities associated with and held to be aggravating an adjudicated service-connected disability; (3) For any disability of a Veteran who has a total disability permanent in nature resulting from a service-connected disability (does not apply outside of the States, Territories, and possessions of the United States, the District of Columbia, and the Commonwealth of Puerto Rico); (4) For any illness, injury or dental condition in the case of a Veteran who is participating in a rehabilitation program under 38 U.S.C. Ch. 31 and who is medically determined to be in need of hospital care or medical services for any of the reasons enumerated in § 17.48(j); and (b) In a medical emergency. Care and services not previously authorized were rendered in a medical emergency of such nature that delay would have been hazardous to life or health, and (c) When Federal facilities are unavailable. VA or other Federal facilities were not 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, or treatment had been or would have been refused. All three statutory requirements (a, b, and c) must be met before the reimbursement may be authorized. See Zimick v. West, 11 Vet. App. 45, 49 (1998); Hayes v. Brown, 6 Vet. App. 66, 68 (1993). In this case, as noted, the Veteran is service-connected for hypertension, rated as 30 percent disabling; and degenerative disc and joint disease of the lumbar spine, rated as 10 percent disabling; for a combined disability rating of 40 percent disabling. The Veteran sought treatment at the non-VA facility for severe low back pain which she believed required immediate treatment as the pain was so severe she could not sit, stand, or lie down without exacerbating pain as a result of her serviceconnected degenerative disc and joint disease of the lumbar spine. Hence, the threshold requirement is met. See 38 C.F.R. § 17.120 (a). With regard to whether treatment was sought in a medical emergency, review of the evidence of record reveals that on January 28, 2006, the Veteran was treated at Sacred Heart Hospital for complaints of severe low back pain. The Veteran contends that she began experiencing severe low back pain which resulted in serious impairment in her ability to sit, stand, and lie down on the evening of Friday, January 27, 2006, into the morning of Saturday, January 28, 2006, which required immediate relief. The nearest VA facility (the VA Outpatient Clinic in Pensacola) was closed on the weekend and reopened on Monday. See March 2006 "Claim for Payment of Cost of Unauthorized Medical Services," VA Form 10-583; February 2008 "Appeal to the Board of Veterans Appeals," VA Form 9 (Substantive Appeal). In light of the Veteran's belief and fear that her severe low back pain was hazardous to her health in that she believed that the absence of immediate medical attention resulted in serious impairment to bodily functions, which the Board finds credible and consistent with the described circumstances, the Board finds that the treatment at Sacred Heart Hospital for lower back pain on January 28, 2006, was emergent treatment such that delay would have been hazardous to the Veteran's health. Hence, the second requirement of the claim is met. See 38 C.F.R. § 17.120 (b). With regard to the provisions of 38 C.F.R. § 17.120 (c), the Board notes that the Biloxi VAMC also denied the Veteran's claim because VA facilities were feasibly available to the Veteran. However, the Veteran indicated that the Pensacola VA Outpatient Clinic was closed on the weekend and reopened on Monday. See March 2006 "Claim for Payment of Cost of Unauthorized Medical Services," VA Form 10-583; February 2008 "Appeal to the Board of Veterans Appeals," VA Form 9 (Substantive Appeal). In this regard, the Board notes that VA clinics near the Veteran's home in Pensacola, Florida, including the Pensacola, Panama City and Mobile (AL) VA Clinics are closed on the weekends. Further, the Board notes that the closest VA facility to Pensacola, Florida, is the Pensacola VA Clinic, located about 20 miles away, and the next closest VA facility was the Biloxi VAMC, located about 120 miles away. Sacred Heart Hospital is located about 20 miles from the Veteran's home in Pensacola. In light of the evidence of record which reveals that the nearest VA facility was closed and the next nearest facility was located over 100 miles away, the Board finds that a VA or other Federal facility was not feasibly available. See 38 C.F.R. § 17.120 (c). In all, given the totality of the evidence, to include the Veteran's competent and credible statements, and resolving all reasonable doubt in his favor, the Board finds that the criteria for payment or reimbursement of unauthorized medical expenses incurred as a result of treatment at Sacred Heart Hospital on January 28, 2006, are met. See 38 U.S.C.A. §§ 1728 , 5107; 38 C.F.R. §§ 3.102 , 17.52, 17.1000-17.1002; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to payment or reimbursement of unauthorized medical expenses incurred as a result of treatment at Sacred Heart Hospital on January 28, 2006, is granted. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs