Citation Nr: 1122152 Decision Date: 06/08/11 Archive Date: 06/20/11 DOCKET NO. 07-20 911A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Fresno, California THE ISSUE Entitlement to payment or reimbursement of medical expenses not previously authorized and incurred on November 24, 2006. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran, who is the Appellant, served on active duty from November 1963 to November 1966. This matter is before the Board of Veterans' Appeals (Board) on appeal of a determination in January 2007 of an agency of original jurisdiction, the VA Medical Center in Fresno, California. In May 2010, the Veteran failed to appear for his scheduled Board hearing. FINDING OF FACT On November 24, 2006, the Veteran received emergent medical services at a private hospital for a service-connected left foot disability, not previously authorized, and a VA facility was not feasibly available. CONCLUSION OF LAW The criteria for payment or reimbursement of medical expenses, not previously authorized, incurred on November 24, 2006, have been met. 38 U.S.C.A. § 1728 (West 2002 & Supp. 2010); 38 C.F.R. § 17.120 (2010). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As the claim is resolved in the Veteran's favor, the Board need not address VCAA compliance. REASONS AND BASES FOR FINDINGS AND CONCLUSION Legal Criteria In claims involving payment or reimbursement by VA for medical expenses incurred as a result of treatment at a private facility, it must first be determined whether the services for which payment is sought were authorized by VA. 38 U.S.C.A. § 1703(a). If not authorized, it must be determined whether the claimant is otherwise entitled to payment or reimbursement for services not previously authorized under either 38 U.S.C.A. §1728 or the Veterans Millennium Healthcare and Benefits Act (Millennium Act), 38 U.S.C.A. § 1725. In this case, the Veteran does not argue that he had he prior VA authorization for private medical treatment. The question posed is whether the Veteran is eligible for payment or reimbursement for medical services that were not previously authorized. Under 38 U.S.C.A. § 1728, implemented at 38 C.F.R. § 17.120, payment or reimbursement of the expenses of medical care, not previously authorized, in a private hospital, including transportation, shall be paid on the basis of a claim timely filed, under the following circumstances: (a). For an adjudicated service-connected disability; (b). In a medical emergency, that is, a medical emergency of such nature that delay would have been hazardous to life or health; and, (c). 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. All three statutory requirements must be met before the payment or reimbursement may be authorized. Effective October 10, 2008, the provisions of 38 U.S.C.A. § 1725 and § 1728 were amended in the Veterans' Mental Health and Other Care Improvements Act of 2008, Pub. L. No. 110-387, § 402, 122 Stat. 4110 (2008). Under the amended version of 38 U.S.C.A. § 1728, the statute remains the same as to the initial eligibility requirement for treatment of a service-connected disability. However, the amendment makes payment or reimbursement by VA of private treatment mandatory as opposed to discretionary, if all of the pertinent criteria outlined above are otherwise satisfied. Analysis Service connection is in effect for diabetic peripheral neuropathy of the right and left lower extremities with amputation of the left forefoot and other complications of diabetes, which have been rated 100 percent disabling since August 2005. The Veteran is divorced. He uses an electric wheelchair for mobility and he does not drive. VA records show that in June 2006 due to complications of service-connected diabetes, the Veteran had the second toe of the left foot amputated because of a Staphylococcus infection and osteomyelitis. In October 2006, the third toe of the left foot was amputated because of recurrence of osteomyelitis, which was found to be Methicillin resistant Staphylococcus aureus (MRSA). On November 24, 2006, the Veteran called VA's Telephone Care Program and complained of severe, sharp left foot pain and a fever and lightheadedness. He stated that he was a diabetic and that he recently had two toes amputated and that he had completed a medical regime that day for MRSA. A VA registered nurse on call advised the Veteran to seek urgent care. The Veteran indicated he had no one to drive him to a VA facility so he would have to call 911. Later a VA primary care physician instructed the Veteran to seek immediate medical attention at an emergency room. Records of an ambulance service show that on November 24, 2006, the EMTs responded to a 911 call from the Veteran. The Veteran complained of left foot pain that had become increasingly more painful and swollen. The pertinent finding was lower extremity edema. The Veteran was then transported to an emergency room at a private hospital. In the emergency room, the Veteran's condition was listed as urgent. The dressing on the left foot was changed. The Veteran was started on prescribed medication, and the diagnostic impression was recurrent osteomyelitis of the left foot. The Veteran was then discharged to home. On November 25, 2006, the Veteran had a friend, who had returned from a holiday, drive him to the Fresno VA Medical Center, where he was admitted and on December 5, 2006, the entire left forefoot was amputated due to a diabetic foot infection, complicated by MRSA. The Veteran timely filed his claim in January 2007, that is, within two years after the date of the medical services in November 2006. 38 C.F.R. § 17.126. As the Veteran was treated for a service-connected left foot disability, the remaining questions are whether there was a medical emergency and whether a VA facility was available. As for the medical emergency, the record shows that a VA physician instructed the Veteran to seek immediate medical attention at an emergency room. As about a month before the Veteran had an amputation of the third toe of the left foot due to recurrent osteomyelitis complicated by MRSA, which was known to the VA physician, the physician's instruction to seek immediate medical attention was an acknowledgment that the medical condition was of a nature that delay in treatment would have been hazardous to the Veteran's life or health. [According to the Mayo Clinic (mayoclinic.com/health/mrsa) a MRSA infection can resist the effects of many common antibiotics, so the infection is more difficult to treat, which can allow the infection to spread and sometimes become life-threatening.] While the Veteran's condition was described by VA and at the ER as urgent, it is clear that the medical condition required prompt attention, which does meet the standard definition of emergency. Webster's New College Dictionary 375 (3rd ed. 2008). As for whether a VA facility was available, when the Veteran called VA on November 24, 2006, he stated that he had no one to drive him to a VA facility, and that he would have to call 911. The Board notes that the nearest VA facility was 57 miles away, that is, from Merced, where the Veteran lived, to the Fresno VA Medical Center, which had an emergency room. With this information, a VA primary care physician instructed the Veteran to seek immediate medical attention at an emergency room. The physician's instruction to seek immediate medical attention at an emergency room was an acknowledgment that a VA facility was not feasibly available. In sum, the treatment of the service-connected left foot disability, the emergent nature of the condition, and the unavailability of a VA facility, when the Veteran was unable to seek prior VA authorization, satisfies the requirements of 38 U.S.C.A. § 1728 and 38 C.F.R. § 17.120, and the Veteran is entitlement to payment or reimbursement of medical expenses incurred on November 24, 2006. ORDER Payment or reimbursement of medical expenses not previously authorized and incurred on November 24, 2006, is granted. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs