Citation Nr: 1418936 Decision Date: 04/29/14 Archive Date: 05/06/14 DOCKET NO. 12-00 228A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center (VAMC) in Lincoln, Nebraska THE ISSUE Entitlement to payment or reimbursement of medical expenses incurred at Shenandoah Medical Center (SMC) in Shenandoah, Iowa, from October 8 to October 9, 2010. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from June 1968 to June 1972. The Veteran is currently service connected for diabetes mellitus, type II, with associated diabetic neuropathy of his bilateral lower extremities and erectile dysfunction, and tinnitus. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2010 letter of determination by the Lincoln VAMC. The Veteran has timely appealed the denial of payment or reimbursement for medical expenses stemming from his treatment at SMC from October 8 to October 9, 2010; the amount in controversy in this case appears to be $160.00 for services rendered by Heartland Imaging Services on October 9, 2010, while still under the care of SMC. The Veteran testified at a hearing before RO personnel in February 2012 and at a Board hearing before the undersigned Veterans Law Judge in July 2013; transcripts of those hearings are associated with the claims file. FINDINGS OF FACT 1. The Veteran was admitted to the SMC from October 8 to October 9, 2010, through the Emergency Room, in relation to his service-connected diabetes mellitus. 2. As the VA doctor at the CBOC specifically referred the Veteran to SMC instead of the Omaha VAMC, VA medical facilities were not feasibly available. The Veteran was not deemed stable enough for discharge from SMC until after the imaging scans had already been taken. CONCLUSION OF LAW The criteria for establishing eligibility for payment or reimbursement of medical expenses incurred at SMC from October 8 to October 9, 2010, have been met. 38 U.S.C.A. §§ 1703, 1728, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 17.52, 17.53, 17.54, 17.120, 17.121, 17.1002 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). In light of the favorable decision, discussed below, with regards to the claim for payment or reimbursement for medical expenses incurred at SMC from October 8 to October 9, 2010, no further discussion of VCAA notice is required at this time. This decision represents a full award of benefits sought on appeal. Analysis In the absence of prior appropriate authorization under 38 C.F.R. §§ 17.53 and 17.54, in order to be entitled to payment or reimbursement of unauthorized medical expenses incurred at a non-VA facility, a claimant must show: (a) The care and services rendered were either: (1) for an adjudicated service-connected disability, or (2) for a nonservice-connected disability associated with and held to be aggravating an adjudicated service-connected disability, or (3) for any disability of a veteran who has a total disability, permanent in nature, resulting from a service-connected disability, or (4) for any injury, illness, or dental condition in the case of a veteran who is participating in a rehabilitation program and who is medically determined to be in need of hospital care or medical services for reasons set forth in 38 C.F.R. § 17.47(i) (formerly § 17.48(j)); and, (b) The services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health; and, (c) No VA or other Federal facilities were feasibly available and an attempt to use them beforehand would not have been reasonable. 38 U.S.C.A. § 1728; 38 C.F.R. § 17.120. If any one of the foregoing requirements is lacking, the benefit sought may not be granted. See Zimick v. West, 11 Vet. App. 45, 49 (1998); Malone v. Gober, 10 Vet. App. 539, 547 (1997); see also Melson v. Derwinski, 1 Vet. App. 334, 337 (the use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). In this case, the Board notes that the Veteran is currently service-connected for his diabetes mellitus, type II, and that the care rendered at SMC was for that service-connected disability. Thus, the first element is met in this case. With regards to whether the treatment was for an emergent condition, the record demonstrates that the Veteran was initially seen on October 8, 2010 by Dr. T.L.L. at a VA Community Based Outpatient Clinic (CBOC). After initial evaluation, Dr. T.L.L. referred the Veteran to SMC's Emergency Room on a direct referral; it was noted that it was a fee basis referral at that time. The record reflects that those Emergency Room charges have subsequently been authorized by VA under 38 U.S.C.A. § 1728. Thus, it is clear that there was an emergent condition and that Dr. T.L.L. specifically sent the Veteran to the SMC's Emergency Room in this case. Thus, the emergent condition element is met. This case therefore turns on whether the VA facilities were feasibly available, to include whether the Veteran was stable enough for transfer. The Board finds that they were not and that he was stable upon discharge from the SMC. It appears that the amount in controversy in this case is $160.00 for imaging scans performed at SMC, while under their care, by Heartland Imaging Services. The VAMC has denied the Veteran's claim because he was stable enough to transfer to the Omaha VAMC, and therefore, VA services were feasibly available. The Board disagrees. Review of those treatment records reveals that the Veteran was initially treated in the Emergency Room with Phenergan and Zofran. "In spite of this, he was still having nausea and having fast respiration. [The Emergency Room doctor treating the Veteran] place[d] a call to [Dr. T., the apparent head of SMC's Emergency Room,] for [the Veteran] to be admitted. [Dr. T.] was okay with this." The Veteran was subsequently kept overnight for observation and it appears that the imaging scans in question in this case were performed in the morning, prior to the Veteran being released/discharged from the private medical facility's care. In this case, VA cannot state that its facilities were feasibly available to the Veteran when their own doctor referred the Veteran specifically to SMC. Once that referral occurred, it appears that the medical judgment of those Emergency Room doctors at SMC was to admit the Veteran overnight for observation and appears to have included the imaging scans at issue in this case. The Board does not question the medical necessity of these scans. The Veteran was adjudged to be medically stable on October 9, 2010, when SMC released him; the Board additionally notes that the Veteran was informed on discharge at that time that he should follow-up with VA on Monday and to call to set up an appointment with VA. The private facility's medical judgment in this case regarding the Veteran's stability respecting when to discharge him from their care is also not questioned by the Board in this case. The imaging scans appear to therefore have occurred while he was under the emergent care of the SMC. In short, VA specifically referred the Veteran to SMC's Emergency Room, and therefore, any and all care rendered by that facility prior to discharge should be reimbursed to the Veteran, as such was emergent care for a service-connected disability, and VA facilities were ipso facto not feasibly available, as VA referred the Veteran to the private medical facility for that emergent treatment. Accordingly, the Board finds that the criteria necessary for payment or reimbursement of medical expenses incurred at SMC in Shenandoah, Iowa from October 8 to October 9, 2010, has been met in this case on the evidence of record. See 38 U.S.C.A. §1728; 38 C.F.R. §§ 17.52, 17.54, 17.1002. In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to payment or reimbursement of medical expenses incurred at SMC from October 8 to October 9, 2010, is granted. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs