Citation Nr: 1007941 Decision Date: 03/03/10 Archive Date: 03/11/10 DOCKET NO. 08-15 928 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Tampa, Florida THE ISSUE Entitlement to payment or reimbursement of medical expenses incurred at a private medical facility on June 21, 2006. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD Amy M. Smith, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1965 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 decision of the Department of Veterans Affairs Medical Center (VAMC) in Tampa, Florida. FINDING OF FACT The report of the Veteran's telephone contact with VA prior to his private emergency treatment on June 21, 2006, meets the requirement for authorization for such treatment and demonstrates that delay would have been hazardous to the life or health of the Veteran. CONCLUSION OF LAW The criteria for payment or reimbursement of medical expenses incurred at a private medical facility on June 21, 2006 have been met. 38 U.S.C.A. § 1728 (West 2002 & Supp. 2009); 38 C.F.R. § 17.120 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Duties To Notify And Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004). In this case, the Board is granting the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Analysis Generally, 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 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. § 17.47(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 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. If any one of the foregoing requirements is lacking, the benefit sought may not be granted. See 38 U.S.C.A. § 1728 (West 2002); 38 C.F.R. § 17.120 (2008); Zimick v. West, 11 Vet. App. 45, 49 (1998); Malone v. Gober, 10 Vet. App. 539, 547 (1997). Initially, in adjudicating a claim for payment or reimbursement of medical expenses, the Board must make a factual determination as to whether VA gave prior authorization for non-VA medical care received at a private facility. 38 U.S.C.A. § 1703(a); 38 C.F.R. § 17.54. This is a factual, not a medical, determination. VA's General Counsel, in response to the question regarding "[w]ho has the authority to approve or authorize a request for private hospitalization at VA expense under 38 U.S.C.A. § 1703(a), and what type of action(s) is necessary to constitute prior authorization under 38 C.F.R. § [17.54]" has indicated that the requirements for obtaining prior authorization for private medical expenses are quite specific. In addition to meeting statutory requirements for reimbursement, any verbal authorizations must be confirmed in writing. See VA O.G.C. Concl. Op. 1-95, 8, 9. 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. In addition, 38 C.F.R. § 17.54 specifies that a request for authorization for non-VA treatment may be conducted through telephone contact. 38 C.F.R. § 17.54(a). In the instant case, the Veteran contends that he is entitled to reimbursement of private medical treatment in June 2006 because he obtained authorization by VA before seeking such treatment. It is noted that at the time of the treatment at issue, the Veteran was in receipt of a TDIU for post operative residuals of a gunshot wound, posttraumatic stress disorder, bullous emphysema, status post right nepharolithotomy, and a left thigh scar, effective from June 1969. The record reflects that on June 21, 2006, the Veteran called the Orlando VAMC nurse triage line complaining of a history of abdominal pain, which had increased in severity during the last week with no relief. He reported a history of kidney stones in the past. The triage nurse assessed the Veteran's complaints as "urgent," and recommended follow-up in an emergency room. This assessment is documented in the VA clinical records. The Veteran signed in at the Florida Hospital emergency department shortly after the consultation with the nurse triage line concluded, the afternoon of June 21, 2006. He underwent X-ray and laboratory examination, and was discharged that evening with a diagnosis of Gastritis and instructions to follow-up with his primary care physician. The Veteran contacted the VA nurse triage line the following day to report his condition and to arrange follow-up with his primary care doctor, which was scheduled for July 2006. Based on the foregoing facts, the Board finds that the June 21, 2006 telephone contact satisfies the requirement of written authorization for private treatment under 38 C.F.R. § 17.54. Additionally, as discussed, the June 21, 2006 telephone discussion resulted in a specific assessment that the Veteran's circumstances were "urgent," supporting the Veteran's contention that his situation constituted an emergency. Further, in his January 2007 Notice of Disagreement, the Veteran stated that the nearest VA clinic was approximately an hour away. Thus, each of the criteria under 38 U.S.C.A. § 1728 are met. See Zimick, supra. ORDER Payment or reimbursement of medical expenses incurred at a private medical facility on June 21, 2006 is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs