Citation Nr: 1008294	
Decision Date: 03/05/10    Archive Date: 03/11/10

DOCKET NO.  08-26 212A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center 
in Gainesville, Florida


THE ISSUE

Entitlement to reimbursement or payment for the cost of 
private medical services provided to the appellant at the 
Citrus Memorial Hospital in Inverness, Florida, for the 
period extending from December 27, 2007.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Patrick J. Costello, Counsel




INTRODUCTION

The appellant had active service from July 1995 to March 
2000.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a March 2008 decision of the 
Department of Veterans Affairs (VA), Gainesville VA Medical 
Center (VAMC) in Gainesville, Florida, which denied the above 
claim.  

The Board notes that the appellant has submitted a claim for 
entitlement to service connection for a psychiatric disorder.  
A decision on that claim has not occurred, and this issue is 
referred back to the Regional Office (RO) in St. Petersburg, 
Florida, for development and adjudication.  


FINDINGS OF FACT

1.  The appellant is seeking VA payment of the cost of his 
private medical treatment provided at the Citrus Memorial 
Hospital for care provided on December 27, 2007.  

2.  VA payment or reimbursement of the costs of the private 
medical care provided on any of the days in question was not 
authorized prior to the appellant undergoing that treatment; 
nor did the appellant request such authorization within 72 
hours of admission.

3.  The private medical treatment was not for, or adjunct to, 
a service-connected disability; a non-service-connected 
disability associated with and held to be aggravating a 
service-connected disability; the appellant did not have a 
total disability rating at the time of admission, and he was 
not a participant in a vocational rehabilitation program.

4.  The appellant was enrolled in the VA Health Care System 
during the 24 months preceding December 2007.

6.  The appellant is financially liable to the provider of 
the emergency treatment.

7.  The appellant does not have insurance to defray the costs 
of emergency treatment.

8.  The appellant has no remedy against a third party for 
payment of the emergency treatment provided.

9.  The appellant is not eligible for reimbursement under 38 
U.S.C. 1728 for the emergency treatment provided.

10.  A VA or other federal facility/provider was not feasibly 
available to provide the necessary medical care.

11.  The care provided at the Citrus Memorial Hospital was 
emergent in nature.  


CONCLUSIONS OF LAW

1.  In the absence of prior authorization for payment of the 
private medical expenses incurred for treatment received on 
December 27, 2007, reimbursement for such expenses is not 
warranted.  38 U.S.C.A. § 1703 (West 2002); 38 C.F.R. §§ 
17.52, 17.54 (2009).

2.  The criteria for payment or reimbursement of unauthorized 
medical expenses, pursuant to 38 U.S.C.A. § 1728, incurred 
for treatment on December 27, 2007, have not been met. 38 
U.S.C.A. § 1728 (West 2002); 38 C.F.R. § 17.120 (2009).

3.  The criteria for entitlement to reimbursement for the 
reasonable value of emergency treatment incurred on December 
27, 2007, have been met. 38 U.S.C.A. § 1725 (West 2002); 38 
C.F.R. §§ 17.1000-08 (2009).




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duty to Notify and Assist

VA has specified duties to notify a claimant as to the 
information and evidence necessary to substantiate a claim 
for VA benefits.  The Board has considered whether further 
development and notice under the Veterans Claims Assistance 
Act of 2000 (VCAA) or other law should be undertaken.  
However, because the claim in this case is governed by the 
provisions of Chapter 17 of Title 38 of the United States 
Code, the VCAA and its implementing regulations are not 
applicable.  See Barger v. Principi, 16 Vet. App. 132, 138 
(2002).  Therefore, the Board's decision to proceed in 
adjudicating this claim, rather than remanding it for 
assistance or additional notification, does not prejudice the 
appellant in the disposition thereof. Bernard v. Brown, 4 
Vet. App. 384, 392-94 (1993).

Analysis

The appellant in this matter is seeking reimbursement for 
private medical expenses that were incurred on December 27, 
2007.  The record indicates that sometime on December 26, 
2007, the appellant was attacked and bitten by a pit bull 
dog.  The dog, per the medical records, bit the appellant's 
left hand, the left buttocks, and the right thigh.  On 
December 27, 2007, the appellant sought treatment at the 
Emergency Department of the Citrus Memorial Hospital.  This 
occurred at approximately 1600 hours.  The record indicates 
that the appellant was driven to Citrus Memorial Hospital by 
a family member, and that the appellant walked into the 
Emergency Department on his own volition.  At the Emergency 
Department, the appellant reported incessant bleeding and 
pain, particular in the buttocks area.  The wounds were 
subsequently dressed, and the appellant was provided with 
medications for pain relief.  He was subsequently released 
from the Emergency Department.  

Following his release from Citrus Memorial Hospital, the 
Hospital billed VA for the amount of $190.00.  The billing 
was received on March 25, 2008.  The VA Medical Center (VAMC) 
subsequently denied the appellant's request for 
reimbursement, and he has appealed to the Board for review.  

Per the appellant, he stated that he contacted the Lecanto VA 
Community Based Outpatient Clinic but was told that the 
Clinic did not handle dog bite cases.  Also per the 
appellant, he wrote that if he wanted to receive VA 
treatment, he was told that he needed to drive to the 
Gainesville VAMC.  In other words, at the time he contacted 
the VA, he was informed that he could not receive treatment 
at the facility that was approximately 15 minutes from his 
home but instead needed to go to VA facility that was 
approximately one hour and thirty minutes from his abode.  
Instead, the appellant sought treatment at a private facility 
that was approximately eight minutes from his home.  In 
essence, the appellant has argued that since he needed 
emergent treatment and because a VA facility was not readily 
available, VA should pay for his treatment at the Citrus 
Memorial Hospital.  

A review of the record reveals that the Gainesville VAMC has 
denied his claims for payment of the treatment.  In denying 
the appellant's claim, the VAMC has said that the care that 
the appellant needed/required was not emergent.  The 
appellant has appealed this decision.  

The record indicates that the appellant, at the time of the 
emergency room treatment, was not in receipt of a 100 percent 
disability rating for any of his disabilities, conditions, or 
disorders.  In fact, the appellant is not in receipt of VA 
compensation payments for any disorder, disability, or 
disease.  However, the appellant had been granted 
noncompensable rating for disabilities of the left and right 
shoulders.  At the time of the hospitalization, the appellant 
was 30 years old.

Initially, in adjudicating a claim for reimbursement of 
medical expenses, the Board must make a factual determination 
as to whether VA gave prior authorization for the non-VA 
medical care that the appellant received in a private 
facility for the treatment received on December 27, 2007.  
See 38 U.S.C.A. § 1703(a) (West 2002); see also 38 C.F.R. § 
17.54 (2009).  This is a factual, not a medical, 
determination.  See Similes v. Brown, 5 Vet. App. 555 (1994).

The law provides that, in connection with its statutory 
obligation to provide medical services to appellant, VA may 
contract for private hospital care in certain limited 
circumstances, including cases where a medical emergency 
exists.

Pursuant to 38 U.S.C.A. § 1703(a) (West 2002), "When [VA] 
facilities are not capable of furnishing . . . the care or 
services required, the Secretary, as authorized in [38 
U.S.C.A. § 1710 or 1712], may contract with non-Department 
facilities in order to furnish" certain care, including:  
"[h]ospital care or medical services for the treatment of 
medical emergencies which pose a serious threat to the life 
or health of a Veteran receiving medical services in a 
Department facility . . . until such time following the 
furnishing of care in the non-Department facility as the 
Veteran can be safely transferred to a Department facility."  
38 U.S.C. § 1703(a)(3) (West 2002); 38 C.F.R. § 17.52 (2009).

The admission of an appellant to a non-VA hospital at the 
expense of VA must be authorized in advance.  38 C.F.R. § 
17.54 (2009).  See Malone v. Gober, 10 Vet. App. 539, 541 
(1997); see also General Counsel Opinion, VAOPGCCONCL 1-95, 
at 9 (Mar. 31, 1995) ("Authorization in advance is essential 
to any determination as to whether the Department is or is 
not going to furnish the contract care.").  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 (2009).

In the present case, there is no evidence that the appellant 
(or his next-of-kin) sought and obtained proper authorization 
for VA payment of the private medical expenses he incurred 
while admitted to the Emergency Department of Citrus Memorial 
Hospital.  The record is negative for any type of report of 
contact prepared by the VA that indicates that the appellant 
or his next-of-kin contacted the VA within 72 hours of the 
care provided for by the Citrus Memorial Hospital.  The 
record before the Board reflects that the first time the VA 
was made aware of the treatment was when the VAMC received 
bills for payment for treatment.  It is further recognized 
that the request for payment was sent to VA more than 72 
hours after the appellant's emergency room admission.

Accordingly, the Board must conclude that prior authorization 
for the private medical treatment received for the treatment 
on December 27, 2007, at the Citrus Memorial Hospital, was 
not obtained pursuant to 38 C.F.R. § 17.54 (2009), and that 
payment is not warranted for expenses incurred in conjunction 
with that treatment under 38 U.S.C.A. § 1703 (West 2002).

The Court has stated that a "second avenue for potential 
relief for a Veteran entitled to VA care forced to obtain 
treatment at a non-VA facility is 38 U.S.C. § 1728, which 
provides that the Secretary 'may, under such regulations as 
the Secretary shall prescribe, reimburse . . . for the 
reasonable value of such care or services . . . for which 
such Veterans have made payment.'"  Malone, 10 Vet. App. at 
541 (1997), quoting 38 U.S.C.A. § 1728(a) (West 2002).

Such reimbursement is available only where -

(1)  such care or services were rendered 
in a medical emergency of such nature 
that delay would have been hazardous to 
life or health; 

(2)  such care or services were rendered 
to a service member in need thereof (A) 
for an adjudicated service-connected 
disability, (B) for a non-service-
connected disability associated with and 
held to be aggravating a service-
connected disability, (C) for any 
disability of an appellant who has a 
total disability permanent in nature from 
a service-connected disability, or (D) 
for any illness, injury, or dental 
condition in the case of an appellant who 
(i) is a participant in a vocational 
rehabilitation program (as defined in 
section 3101(9) of this title), and (ii) 
is medically determined to have been in 
need of care or treatment . . . .; and 
(iii) [VA] or other Federal facilities 
were not feasibly available, and an 
attempt to use them beforehand would not 
have been reasonable, sound, wise, or 
practical.

38 U.S.C.A. § 1728(a) (West 2002); 38 C.F.R. § 17.120 (2009).

The Court has observed that, given the use by Congress of the 
conjunctive "and" in the statute, emphasized in the above 
quotation, "all three statutory requirements would have to 
be met before reimbursement could be authorized."  Malone, 
10 Vet. App. at 542, citing Cotton v. Brown, 7 Vet. App. 325, 
327 (1995); Hayes v. Brown, 6 Vet. App. 66 (1993).

It may be argued by the appellant that it was his belief that 
emergent medical attention was appropriate because he was 
experiencing pain and proficient bleeding from the various 
dog bites.  Even if the Board agrees with the appellant, the 
evidence does not show that the treatment was for a service-
connected disability or for a nonservice-connected disability 
that was affecting a service-connected disability.  See 
Swinney v. Shinseki, 23 Vet. App. 257 (2009).  Moreover, 
there is nothing in the record that would indicate that the 
treatment was for a permanent disability, and the appellant 
was not participating in a vocational rehabilitation program.  
As such, payment is not warranted for expenses incurred in 
conjunction with the treatment received on December 27, 2007, 
at the Citrus Memorial Hospital pursuant to 38 U.S.C.A. § 
1728 (West 2002).

To ensure that the appellant fully understands this point, 
the Board finds that the care rendered by the private 
facility was for a medical emergency of such nature that 
delay could have been hazardous to life or health in light of 
the complaints expressed by the appellant.  However, the 
Board finds that at the time of the hospitalization, the 
appellant did not satisfy any of the four requirements of the 
second criterion, and that payment is not warranted for 
expenses incurred in conjunction with that treatment under 38 
U.S.C.A. § 1728 (West 2002).

Finally, payment or reimbursement for emergency services for 
nonservice-connected conditions in non-VA facilities may be 
authorized under 38 U.S.C.A. § 1725 (West 2002) and 38 C.F.R. 
§§ 17.1000-1002 (2009).  Section 1725 was enacted as part of 
the Veterans Millennium Health Care and Benefits Act, Pub. L. 
106-117, Title I, Subtitle B, § 111, 113 Stat. 1556 (1999).  
To be eligible for reimbursement under this authority the 
appellant has to satisfy all of the following conditions:

(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 
nature that a prudent layperson would 
have reasonably expected that delay in 
seeking 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 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 could be met by 
evidence establishing that an appellant 
was brought to a hospital in an ambulance 
and the ambulance personnel determined 
that the nearest available appropriate 
level of care was not a non-VA medical 
center);

(d)  The claim for payment or 
reimbursement for any medical care beyond 
the initial emergency evaluation and 
treatment is for a continued medical 
emergency of such a nature that the 
appellant could not have been safely 
transferred to a VA or other Federal 
facility (the medical emergency lasts 
only until the time the appellant becomes 
stabilized);

(e)  At the time the emergency treatment 
was furnished, the appellant was enrolled 
in the VA health care system and had 
received medical services under authority 
of 38 U.S.C.A. Chapter 17 within the 24-
month period preceding the furnishing of 
such emergency treatment;

(f)  The appellant is financially liable 
to the provider of emergency treatment 
for the treatment;

(g)  The appellant 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 appellant has 
coverage under a health-plan contract but 
payment is barred because of a failure by 
the appellant 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);

(h)  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 appellant or 
provider against a third party for 
payment of such treatment; and the 
appellant 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 
appellant's liability to the provider; 
and

(i)  The appellant is not eligible for 
reimbursement under 38 U.S.C.A. 1728 for 
the emergency treatment provided (38 
U.S.C.A. 1728 authorizes VA payment or 
reimbursement for emergency treatment to 
a limited group of appellant's, primarily 
those who receive emergency treatment for 
a service-connected disability).

The existence of a VA facility does not in and of itself mean 
that the VA facility was feasibly available.  See Cotton v. 
Brown, 7 Vet. App 325, 327 (1995).  Feasibly available is not 
defined in 38 U.S.C.A. § 1728 (West 2002) or 38 C.F.R. § 
17.120 (2009).  Under the provisions of 38 C.F.R. § 17.53 
(2009), a VA facility may be considered as not feasibly 
available when the urgency of the applicant's medical 
condition, the relative distance of the travel involved, or 
the nature of the treatment required makes it necessary or 
economically advisable to use public or private facilities.  
38 C.F.R. §§ 17.52 and 17.53 (2009).  A VA facility would not 
be feasibly available if there was evidence establishing that 
an appellant 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 facility.  See 38 
C.F.R. § 17.1002(c) (2009).

Upon reviewing the evidence, the Board concludes that the 
appellant does satisfy all of the elements of the Millenium 
Act:

(a)  the services were provided in an 
emergency room;

(b)  delay in seeking immediate medical 
attention may have been hazardous to life 
or health.  A prudent layperson who 
possesses an average knowledge of health 
and medicine and who was experiencing the 
symptoms complained thereof by the 
appellant may have reasonably expected 
the absence of immediate medical 
attention to result in placing the his 
health in serious jeopardy, or 
experiencing serious impairment to bodily 
functions, or having serious dysfunction 
of any bodily organ or part;

(c)  VA facilities were not feasibly 
available in that the local VA outpatient 
clinic was closed at the time the 
appellant presented himself, it may or 
may not have been equipped to provide 
emergency care for dog bite wounds, and 
the nearest VAMC was located one hour and 
thirty minutes from the appellant's home;  

(d)  no claim for care beyond the initial 
emergency evaluation and stabilization of 
the dog bites to the thumb, buttocks, and 
thigh is at issue here;

(e)  the appellant was enrolled in the VA 
health care system and received care at a 
VA medical facility within the previous 
twenty-four months;

(f)  the appellant is financially liable 
to the provider of the emergency 
treatment, as noted by the private 
emergency room bills;

(g)  the appellant had no additional 
medical coverage;

(h)  he has no contractual or legal 
recourse against a third party; and

(i)  he is not eligible for reimbursement 
under 38 U.S.C. 1728, as discussed above.

The Board thus concludes that the criteria for entitlement to 
reimbursement for the reasonable value of treatment received 
at the Citrus Memorial Hospital for the treatment received on 
December 27, 2007, have been met.  38 U.S.C.A. § 1725 (West 
2002); 38 C.F.R. § 17.1000-08 (2009).  Accordingly, the 
benefit sought on appeal is granted.


ORDER

Entitlement to reimbursement or payment for the cost of 
private medical services provided to the appellant at the 
Citrus Memorial Hospital Emergency Department on December 27, 
2007, is granted.



____________________________________________
DEMETRIOS G. ORFANOUDIS
Acting Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs