Citation Nr: 1122437 Decision Date: 06/09/11 Archive Date: 06/20/11 DOCKET NO. 09-30 359 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Ann Arbor, Michigan THE ISSUE Entitlement to reimbursement of medical expenses incurred on July 21, 2008 at the Michigan Urology Center in Ann Arbor, Michigan. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. M. Schaefer, Associate Counsel INTRODUCTION The Veteran is an honorably discharged Veteran of the United States military. This matter is before the Board of Veterans' Appeals (Board) on appeal from a letter decision issued in October 2008 by the Department of Veterans Affairs (VA) Medical Center (VAMC) in Ann Arbor, Michigan. In October 2010, the Veteran testified at a Travel Board hearing before the undersigned. A transcript of the hearing is associated with the claims file. After the last adjudication of the claim by the VAMC, additional evidence was added to the record consisting of VA treatment records dated in July 2008 and October 2008. See 38 C.F.R. § 20.1304 (2010). The Veteran waived agency of original jurisdiction (AOJ) consideration of such evidence. Id. Therefore, the Board may properly consider such evidence in rendering its decision. FINDINGS OF FACT 1. Service connection is in effect for a kidney disability. 2. The Veteran received a ureteroscopy and laser lithotripsy to treat a proximal ureteral stone with mild hydronephrosis at the Michigan Urology Center on July 21, 2008. 3. The medical expenses incurred on July 21, 2008, were incurred both as a result of medical emergency and because a VA or other Federal facility was not feasibly available. CONCLUSION OF LAW The criteria for reimbursement or payment of private medical care expenses incurred on July 21, 2008 at the Michigan Urology Center in Ann Arbor, Michigan have been met. 38 U.S.C.A. §§ 1725, 1728 (West 2002 & Supp. 2010); 38 C.F.R. §§ 17.120, 17.1002(b) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) As the Board's decision herein to grant the claim for reimbursement of medical expenses is a full grant of the benefits sought on appeal, no further action is required to comply with the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted November 9, 2000 (codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002)) and the implementing regulations as to that claim. B. Legal Criteria and Analysis The Veteran contends that he is entitled to reimbursement of medical expenses incurred for treatment of a kidney stone at the Michigan Urology Center. He asserts that a stent was placed at the VAMC in Ann Arbor, but the laser was not available at the time to perform a laser lithotripsy and would not be available for five weeks. Thereafter, finding the pain unbearable, the Veteran sought lithotripsy at a private hospital; the procedure was performed on July 21, 2008. Under 38 U.S.C.A. § 1728, VA may reimburse a Veteran for the reasonable value of emergency treatment furnished in a non-VA facility, or in lieu of that, make payment directly to a hospital or other health care provider that furnished such treatment on behalf of the Veteran, if other requirements discussed below are met. Reimbursement or payment for expenses not previously authorized may be made only under the following circumstances (all criteria a, b, and c must be met): (a) For Veterans with service connected disabilities, treatment not previously authorized is rendered for (1) an adjudicated service-connected disability; or (2) a nonservice-connected disability associated with and held to be aggravating an adjudicated service-connected disability; or (3) any disability of a Veteran who is permanently and totally disabled as a result of a service-connected disability; or (4) for any illness, injury or dental disability in the case of a Veteran who is participating in a rehabilitation program under 38 U.S.C. Chapter 31; (b) such treatment was rendered in 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 would not have been reasonable. 38 U.S.C.A. §§ 1725(f)(1)(B), 1728; 38 C.F.R. § 17.120. Failure to satisfy any one of the three criteria (a, b, or c) listed above precludes VA from paying unauthorized medical expenses incurred at a private hospital. See 38 C.F.R. § 17.120; Zimick v. West, 11 Vet. App. 45, 49 (1998). The term "emergency treatment" means, in pertinent part, a medical emergency of such nature that a prudent layperson reasonably expects that delay in seeking immediate medical attention would be hazardous to life or health. 38 U.S.C.A. §§ 1725(f)(1)(B), 1728(c); 38 C.F.R. § 17.1002(b). A July 9, 2008 VA treatment record shows the Veteran was diagnosed with a proximal ureteral stone with mild hydronephrosis. It was noted that the stone would need to be treated by ureteroscopy with laser lithotripsy at the next available date. A stent was placed that same day in a procedure at the VAMC. On follow-up the next day, the Veteran reported severe pain with urination. A July 21, 2008 letter from private physician J.S.W. states that the ureteral stone was treated at the VA hospital, but the laser was not available at the VA hospital for over a month and so the Veteran was referred to Dr. J.S.W. for "definitive management sooner." Dr. J.S.W. performed an ureteroscopy and laser lithotripsy to pulverize the stone on July 21, 2008. The letter notes that this was the third stone the Veteran had experienced, his second in three years, and that clinical findings suggested the Veteran was at risk to be an active stone former. The Veteran is service-connected for nephritis, rated 10 percent disabling. As the laser lithotripsy and ureteroscopy performed at the Michigan Urology Center on July 21, 2008 were performed to treat a condition related to the Veteran's service-connected disability or, at the very least, were performed to treat a nonservice-connected disability that was aggravating his service-connected nephritis, the Board concludes that the first requirement for reimbursement under § 1728 is established. Additionally, the Board concludes that the procedure performed on July 21, 2008 was rendered in a medical emergency of such nature that a prudent layperson would have believed that delay would have been hazardous to life or health. VA records show that the day after the stent was placed the Veteran reported a pain level of 10 with severe pain with urination. The Veteran was concerned with the amount of pain he was having with urination and had left a message with the VA clinic. At the October 2010 hearing, the Veteran testified that VA told him when they placed the stent that the laser they shared with the University of Michigan would not be available for five weeks to pulverize the stone. He reported that they said some people could tolerate a stone, while others could not tolerate a stone. The Veteran said he was unable to tolerate the stone and that every time he urinated the pain was so intense that it felt like he was passing a stone. Vicodin did not help the pain and he did not feel like he could deal with that amount of pain for five weeks. He reported that he was unable to work during the time between the stent placement and the lithotripsy because of the pain and the Vicodin. The Board finds the Veteran's statements to be credible and to be supported by the medical evidence of record. Given the type of pain the Veteran described experiencing subsequent to the stent placement in July 2008, a prudent layperson would have believed that delay of the laser lithotripsy for several more weeks when VA had the means to perform the procedure would have been hazardous to life or health. Hence, the second requirement for reimbursement of medical expenses pursuant to § 1728 is met. What remains to be established is that a VA or other Federal facility was not feasibly available and an attempt to use that facility beforehand would not have been reasonable. The evidence shows that the Veteran attempted to have the laser lithotripsy performed by VA, but was told that the laser VA shared with the University of Michigan would not be available for five weeks after the stent was placed. Hence, because of the laser's unavailability at VA, he was essentially refused timely treatment of the ureteral stone at a VA facility. Given the pain he was experiencing, an attempt to wait any longer for the laser to be available through VA would not have been reasonable. It is also notable that the July 2008 letter from Dr. J.S.W. and testimony provided by the Veteran at the October 2010 hearing indicates that VA referred him to the University of Michigan for the lithotripsy. Although the evidence does not show that the procedure was pre-authorized, the referral indicates that VA providers viewed his need for treatment as being unable to wait until the laser was available at the VA hospital. Hence, in resolving any reasonable doubt in the Veteran's favor, the Board concludes that a VA facility was not feasibly available to treat the emergent nature of the Veteran's condition. Accordingly, in light of the above, the Board concludes that the requirements for reimbursement of the cost of the July 21, 2008 treatment received at the Michigan Urology Center have been met and that reimbursement is warranted. ORDER Reimbursement of private medical care expenses incurred on July 21, 2008 at the Michigan Urology Center in Ann Arbor, Michigan is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ M. SORISIO Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs