Citation Nr: 0810477	
Decision Date: 03/28/08    Archive Date: 04/09/08

DOCKET NO.  06-14 349A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Medical Center (MC) in 
Muskogee, Oklahoma


THE ISSUE

Entitlement to payment or reimbursement for the cost of 
unauthorized private medical expenses incurred from July 9, 
2005, to July 12, 2005.


REPRESENTATION

Veteran represented by:	Oklahoma Department of 
Veterans Affairs


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

J. B. Freeman, Associate Counsel
INTRODUCTION

The veteran reportedly served on active duty from July 1969 
to March 1970.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a September 2005 decision of the VA 
Medical Center of the Department of Veterans Affairs (VA) in 
Muskogee, Oklahoma, which denied the veteran's claim for 
payment or reimbursement of unauthorized medical expenses at 
St. Francis Hospital in Tulsa, Oklahoma from July 7, 2005 
through July 12, 2005.  A January 2006 decision granted 
payment for expenses incurred on July 7 and July 8, 2005.  
The veteran subsequently initiated and perfected an appeal of 
this determination for the period from July 9 to July 12, 
2005.

The Board remanded this case in November 2007 for a 
videoconference hearing before a Veterans Law Judge.  The 
veteran testified before the undersigned at a February 2008 
hearing. 


FINDINGS OF FACT

1.  As of July 2005, the veteran was service-connected for 
PTSD, with a 100 percent disability rating.  

2.  The veteran's injuries, resulting from a motorcycle 
crash, were emergent in nature, and given his condition and 
location at St. Francis, VA care was not reasonably feasible 
from July 9 to July 12, 2005.


CONCLUSION OF LAW

The criteria for payment or reimbursement of unauthorized 
medical expenses arising from emergency care provided at a 
non-VA facility between July 9, 2005, and July 12, 2005, have 
been met. 38 U.S.C.A. §§ 1725, 1728, 5107 (West 2002 & Supp. 
2007); 38 C.F.R. §§ 3.102, 17.120, 17.121, 17.1000, 17.1001, 
17.1002 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. VCAA

As will be discussed, reimbursement has been granted in full, 
as discussed below.  The Board finds that any error related 
to the VCAA on the claim is moot.  See 38 U.S.C. §§ 5103, 
5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007); 
Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on 
other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. 
Cir. 2006).

II. Reimbursement for Unauthorized Medical Expenses

The veteran contends that he is entitled to reimbursement for 
unauthorized medical expenses he incurred between July 9, and 
July 12, 2005.  (VA has already granted payment for medical 
services provided by St. Francis on July 7 and July 8, 2005.)  

On July 7, the veteran was driving a motorcycle when he was 
forced off the road and into a ditch.  The veteran was 
airlifted to the St. Francis Hospital in Tulsa, Oklahoma for 
treatment.  For the reasons that follow, the Board concludes 
that full reimbursement for all expenses incurred at St. 
Francis Hospital between July 9 and July 12, 2005 is 
warranted.  

In general, to establish eligibility for payment or 
reimbursement of medical expenses incurred at a non-VA 
facility, a claimant must satisfy three conditions.  There 
must be a showing that:

(a) The care and services rendered were either:

(1) for an adjudicated service-connected disability, 
or (2) for a non-service-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. § 17.48(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 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.

See 38 U.S.C.A. § 1728; 38 C.F.R. § 17.120; see also Zimick 
v. West, 11 Vet. App. 45, 49 (1998).

Failure to satisfy any of the three criteria listed above 
precludes VA from paying unauthorized medical expenses 
incurred at a private facility.  Zimick, 11 Vet. App. at 49; 
see also Malone v. Gober, 10 Vet. App. 539, 542 (1997), 
citing Cotton v. Brown, 7 Vet. App. 325, 327 (1995); H.R. 
Rep. No. 93-368, at 9 (July 10, 1973) ("[The proposed 
provision a]uthorizes reimbursement of certain veterans who 
have service-connected disabilities, under limited 
circumstances, for reasonable value of hospital care or 
medical services . . . from sources other than the VA.  
Eligible veterans are those receiving treatment for a 
service-connected disability. . . .  Services must be 
rendered in a medical emergency and VA or other Federal 
facilities must not be feasibly available.").

At the time of his accident, the veteran was service-
connected for PTSD, with a 100 percent disability rating.  
The Board finds that the veteran's total disability rating 
satisfies the first element for reimbursement.  See 38 C.F.R. 
§ 17.120(a), supra.

Following the veteran's accident, he was airlifted to St. 
Francis Hospital, where he was placed in the Intensive Care 
Unit.  His injuries included a closed head injury and 
concussion with three broken ribs, broken right clavicle and 
scapula, broken C5 vertebra, and a subgaleal hematoma, among 
other injuries.  The veteran reportedly had an altered level 
of consciousness when the first emergency personnel reached 
him.  The Board is satisfied by the evidence of emergent need 
for medical care.  See 38 C.F.R. § 17.120(b), supra.

The remaining question is whether VA or other federal medical 
care was feasibly available.  See 38 C.F.R. § 17.120(c), 
supra.

On July 8, the veteran was evaluated by both the orthopedic 
and neurosurgical services at the hospital.  The veteran was 
alert and awake for both evaluations.  He was transferred out 
of Intensive Care and into a general bed.  The RO was 
notified on July 8 that the veteran was being treated at St. 
Francis.  The RO contacted a social worker at St. Francis who 
indicated that the veteran stated that he did not desire VA 
care and that he had State Farm Insurance.  The RO only 
granted reimbursement through July 8.  

The veteran contends that he has no memory of a conversation 
with anyone about VA treatment and that he was in no 
condition to be transferred even if he had agreed to 
transfer.  At his hearing before the undersigned, the veteran 
submitted statements from a Dr. Goodwin and R.C., both of 
whom visited the veteran during his hospital stay, and a 
statement from Dr. Griffin, who works at St. Francis.  

The statement from Dr. Goodwin shows significant impairment 
as a result of the accident.  Dr. Goodwin states that the 
veteran did not remember his visits until a final visit just 
prior to his discharge from the hospital.  

The statement from R.C. indicates that the veteran drifted in 
and out of consciousness.  The statement does not indicate 
how quickly R.C. visited following the accident.

The statement of Dr. Griffin supports both of the veteran's 
contentions.  He indicates that the veteran's injuries were 
of such a nature that he probably was not of sound mind at 
the time that he was asked about VA care.  Griffin also 
stated that hospital policy is to transfer VA patients as 
soon as possible, but that such a transfer would not have 
reduced the amount of time that the veteran spent at St. 
Francis.  

The Board finds that VA care was not feasible until the time 
of the veteran's discharge from St. Francis Hospital on July 
12, 2005.  See 38 C.F.R. § 17.120(c), supra.  In this regard, 
it is noted that the veteran sustained a broken neck.  An 
injury of that severity would undoubtedly necessitate 
immobilizing the patient and prevent moving him until a 
period of observation confirmed that he was not in danger of  
spinal cord injury.  The veteran's refusal of VA care would 
be irrelevant to the amount of time that the veteran spent in 
St. Francis, as the hospital would not have released him.  
The Board also notes that the closest VA hospital to Tulsa is 
in Muskogee, a not inconsiderable distance, given the 
veteran's very serious injuries.  

Finding reasonable doubt in favor of the veteran, the Board 
finds that the veteran, who is in receipt of a 100 percent 
disability rating, required emergent care from July 9 to July 
12, 2005 and that VA care was not reasonably feasible.  As 
such, the criteria for reimbursement for the entire period of 
the veteran's unauthorized medical expenses have been met.  
See 38 U.S.C.A. § 1728; 38 C.F.R. § 17.120; see also Zimick, 
supra.

The Board notes that the Veterans Millennium Health Care and 
Benefits Act, which became effective in May 2000, also 
provides general authority for reimbursement for the 
reasonable value of emergency treatment furnished in a non-
Department facility to those veterans who are active 
Department health-care participants (enrolled in the annual 
patient enrollment system and recipients of Department 
hospital, nursing home, or domiciliary care under such system 
within the last 24-month period) and who are personally 
liable for such treatment and not eligible for reimbursement 
under the provisions of 38 U.S.C.A. § 1728.  See 38 U.S.C.A. 
§ 1725.  In light of the Board's conclusion that full 
reimbursement is warranted under 38 U.S.C.A. § 1728, further 
consideration under § 1725 is not warranted.


ORDER

Entitlement to payment or reimbursement for the cost of 
unauthorized private medical expenses incurred from July 9, 
2005, to July 12, 2005, is granted.




____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs