Citation Nr: 1319933 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 12-27 824 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) VA Greater Los Angeles, California, Health Care System THE ISSUE Entitlement to payment or reimbursement for medical treatment in June 2010 and December 2010. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran served on active duty from June 1957 to April 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2010 and March 2011 decisions of the Department of Veterans Affairs (VA) VA Greater Los Angeles, California, Health Care System. The Veteran testified at a March 2013 hearing by the undersigned held by videoconference from the RO. A transcript of that hearing is associated with the claims file. The appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a) (2) (West 2002). FINDING OF FACT At the time of the medical services in question were rendered, the Veteran's clinical situation reflected a medical emergency. CONCLUSION OF LAW The requirements for payment or reimbursement of private medical expenses in June 2010 and December 2010 have been met. 38 U.S.C.A. §§ 1703, 1725, 1728, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 17.52, 17.120, 17.1000, 17.1002, 17.1003 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In light of the favorable action taken herein, discussion of whether VA has met its duties of notification and assistance is not required, and deciding the appeal at this time is not prejudicial to the Veteran. The facts of this case are not in dispute. VA authorized treatment for teeth #19 and #30 in July 2009, based on a treatment plan of having those teeth extracted. At that time, the Veteran requested an alternative plan of treatment be considered, so VA moved to solicit another dentist to submit an alternative treatment plan. In June 2010, the Veteran underwent treatment of tooth #30; in December 2010, he underwent treatment of tooth #19. VA denied the Veteran's claim for reimbursement of the associated costs, and this appeal followed. VA may contract with non-VA facilities to provide medical services for which VA may assume financial responsibility in certain circumstances. 38 U.S.C.A. § 1703(a) (1)-(8); 38 C.F.R. § 17.52. However, there is no allegation in this case that VA contracted with Dr. Bhat for the Veteran's medical treatment. Moreover, a claim for payment or reimbursement of services not previously authorized may be filed by a veteran who received the services (or his/her guardian) or by the hospital, clinic, or community resource which provided the services, or by a person other than the veteran who paid for the services. 38 C.F.R. § 17.123 (2012). In this case, the claim for payment or reimbursement is brought by Dr. Bhat. Section 17.120 of Chapter 38 of the Code of Federal Regulations provides that to the extent allowable, payment or reimbursement of the expenses of care, not previously authorized, in a private or public (or Federal) hospital not operated by the Department of Veterans Affairs, or of any medical services not previously authorized including transportation (except prosthetic appliances, similar devices, and repairs) may be paid on the basis of a claim timely filed, under the following circumstances: (a) For veterans with service-connected disabilities. Care or services not previously authorized were rendered to a veteran in need of such care or services: (1) For an adjudicated service-connected disability; (2) For nonservice-connected disabilities associated with and held to be aggravating an adjudicated service-connected disability; (3) For any disability of a veteran who has a total disability permanent in nature resulting from a service-connected disability; (4) For any illness, injury or dental condition in the case of a veteran who is participating in a rehabilitation program under 38 U.S.C. Ch. 31 and who is medically determined to be in need of hospital care or medical services for any of the reasons enumerated in § 17.48(j); and (b) In a medical emergency. Care and services not previously authorized were rendered in a medical emergency of such nature that delay would have been hazardous to life or health, and (c) When Federal facilities are unavailable. 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, or treatment had been or would have been refused. 38 C.F.R. § 17.120; see also 38 U.S.C.A. § 1728(a) (1)-(3). All three statutory requirements must be met before reimbursement can be authorized. Zimick v. West, 11 Vet. App. 45, 49 (1998); Malone v. Gober, 10 Vet. App. 539, 547 (1997). Here, the record reflects that the Veteran's service-connected prostate cancer and related residuals have been rated as 100 percent disabling since February 1998, and other medical evidence tends to suggest that the cancer not only remains active but has metastasized. Further, the record reflects that all of the Veteran's dental treatment, dating back to September 2001, have been on a fee basis, and thus conducted at non-VA facilities by non-VA personnel. Although it is not clear that the Veteran sought treatment at a VA facility for these specific instances of care, it appears unlikely that the VA facility nearest his home and at which he routinely sought medical care would have been able to accommodate him, being that he had been repeatedly and exclusively referred for the past 8 years for dental concerns to non-VA practitioners. After review of the evidence, the Board also finds that criterion (b), concerning whether the medical situation was an emergency, is satisfied. VA authorized treatment for teeth #19 and #30 in July 2009, based on a treatment plan of having those teeth extracted. However, as noted above, the Veteran rejected that plan of treatment and requested that a second opinion be obtained. Clearly, such a request was within the Veteran's rights, being that VA undertook the request and did not deny it outright. The record reflects that VA did not submit a second treatment plan until after the Veteran first underwent treatment with Dr. Bhat. Further, the Veteran testified at his March 2013 hearing of his sincere belief that that he needed to receive treatment of teeth #19 and #30 on an emergent basis due to certain symptoms he experienced and his concern over sepsis or other physiologic manifestations that could occur as a result of an untreated dental abscess. That the treatment was of an emergent nature was confirmed by records from Dr. Bhat's office from treatment in June 2010 and December 2010. Thus, the record establishes both a lay and a medical view that the treatment of teeth #19 and #30 could not wait until VA returned the approved alternate treatment plan. Ultimately, the evidence establishes that the Veteran's treatment of teeth #19 and #30 in June 2010 and December 2010 occurred in the context of a medical emergency. Accordingly, the evidence establishes entitlement to reimbursement under 38 U.S.C.A. § 1728. See also 38 C.F.R. § 17.120. ORDER Payment or reimbursement of private medical expenses in June 2010 and December 2010 is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs