Citation Nr: 1337805 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 12-00 868 ) DATE ) ) On appeal from the Department of Veterans Affairs Togus Medical Center in Augusta, Maine THE ISSUE Entitlement to payment or reimbursement of private medical expenses incurred for nine chiropractic visits between June 30, 2010 and August 24, 2010, at the Newport Chiropractic Center. REPRESENTATION Appellant represented by: Maine Veterans' Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from April 1967 to September 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Togus Medical Center in Augusta, Maine. FINDINGS OF FACT 1. The Veteran is service-connected for the following disabilities: posttraumatic stress disorder (PTSD), rated 100 percent disabling; posttraumatic headaches, rated 50 percent disabling; fractured dislocation right orbital floor and infra-orbital rim with plastic implant to current enophthalmos and exophoria, fatigue type, rated 20 percent disabling; neuralgia, right infra-orbital nerve, rated 10 percent disabling; tinea pedis and manus, rated 10 percent disabling; tinnitus, rated 10 percent disabling; residuals of fragment wound to the transverse colon with colorrhaphy, rated 0 percent disabling; residuals of fragment wound left anterior thigh, rated 0 percent disabling; and pseudophakia of the right eye, rated 0 percent disabling. The Veteran's combined disability evaluation has been 100 percent, since March 1985. He is also permanently and totally disabled, and has been awarded housebound benefits. 2. Between June 30, 2010 and August 24, 2010, the Veteran, without prior authorization from VA, underwent a series of nine chiropractic treatments at the Newport Chiropractic Center for severe back pain with numbness and weakness in his lower extremities. 3. The treatment obtained by the Veteran was for a medical emergency such that a prudent lay person would reasonably expect that a delay in seeking immediate medical attention would be hazardous to health, and VA facilities were not feasibly available. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, the criteria for payment or reimbursement of medical expenses not previous authorized for private medical services, consisting of nine chiropractic visits between June 30, 2010 and August 24, 2010, at the Newport Chiropractic Center, have been met. 38 U.S.C.A. §§ 1728, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 17.120 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue on appeal. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). This is so because the Board is taking action favorable to the Veteran by granting entitlement to payment or reimbursement of private medical expenses. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). The Veteran and his representative contend that payment or reimbursement is warranted for expenses incurred for a series of nine chiropractic treatments at the Newport Chiropractic Center from June 30, 2010 and August 24, 2010. During this time frame, the Veteran was service-connected for the following disabilities: PTSD, rated 100 percent disabling; posttraumatic headaches, rated 50 percent disabling; fractured dislocation right orbital floor and infra-orbital rim with plastic implant to current enophthalmos and exophoria, fatigue type, rated 20 percent disabling; neuralgia, right infra-orbital nerve, rated 10 percent disabling; tinea pedis and manus, rated 10 percent disabling; tinnitus, rated 10 percent disabling; residuals of fragment wound to the transverse colon with colorrhaphy, rated 0 percent disabling; residuals of fragment wound left anterior thigh, rated 0 percent disabling; and pseudophakia of the right eye, rated 0 percent disabling. The Veteran's combined disability evaluation has been 100 percent, since March 1985. He was also permanently and totally disabled, and had been awarded housebound benefits. At his July 2012 video conference hearing before the Board, the Veteran testified that he sought treatment for severe back pain with numbness and weakness in his lower extremities. He also indicated that this condition significantly limited his mobility, and that this limitation was aggravating his service-connected PTSD. The Veteran reported that he had previously been authorized by VA in the past to receive treatment from this private chiropractor. Once these symptoms had again returned, he testified that he again contacted VA prior to receiving any of the treatment at issue in this appeal. He indicated that he was informed that the treatment was authorized, but that a treatment plan had to be provided. Finally, he testified that VA subsequently approved a new round of chiropractic care from the same physician beginning the month after the treatment at issue in this appeal, but that he no longer required this round of treatment as a result of the treatment at issue in this appeal. 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. See 38 U.S.C.A. § 1703(a) (West 2002). Although the Veteran contends that he sought and received prior authorization for treatment during a telephone conversation with a VA clerk, the evidence does not support this factual conclusion. Similes v. Brown, 6 Vet. App. 555, 556 (1994) (noting that the determination as to whether VA gave prior authorization for non-VA medical care received at a private facility is factual, rather than medical, in nature). While the Board accepts that the Veteran's contention that he contacted VA prior to his having sought any treatment herein, his own testimony reflects that additional steps were required to complete the process of obtaining authorization. Specifically, he referenced that a treatment plan needed to be developed and sent to VA for approval. As the evidence indicates that the services rendered were not authorized by VA, it must be determined whether the Veteran is otherwise entitled to reimbursement for services not previously authorized. See U.S.C.A. §§ 1725, 1728 (West 2002); see also Hennessey v. Brown, 7 Vet. App. 143 (1994). Reimbursement of certain medical expenses will be paid on the basis of a claim timely filed, under the following circumstances: (a) For veterans with service connected disabilities. Emergency treatment not previously authorized was rendered to a veteran in need of such emergency treatment: (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 (does not apply outside of the States, Territories, and possessions of the United States, the District of Columbia, and the Commonwealth of Puerto Rico); . . . . (b) In a medical emergency. Emergency treatment not previously authorized including medical services, professional services, ambulance services, ancillary care and medication (including a short course of medication related to and necessary for the treatment of the emergency condition that is provided directly to the patient for use after the emergency condition is stabilized and the patient is discharged) was rendered in a medical emergency of such nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. This standard is met by 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. And, (c) When Federal facilities are unavailable. VA or other Federal facilities that VA has an agreement with to furnish health care services for veterans 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 U.S.C.A. § 1728; 38 C.F.R. 17.120. The provisions in 38 C.F.R. § 17.120 are conjunctive, not disjunctive. Malone v. Gober, 10 Vet. App. 539, 544 (1997) (finding that all three eligibility requirements under § 1728 must be met). Initially, the Board finds that the Veteran has a total disability permanent in nature resulting from a service-connected disability. Moreover, the Board accepts the Veteran's contentions that his severe back pain, along with numbness and weakness in the lower extremities, was aggravating his service-connected PTSD. As such, the Veteran meets the criteria of 38 C.F.R. § 17.120(a)(2) & (3). Furthermore, the evidence of record indicates that the medical treatment provided to the Veteran was emergent. The Veteran testified that his back pain was not only severe, but was rapidly increasing in severity. He further testified that it was causing numbness and weakness in his lower extremities, which was effecting his mobility. Finally, he indicated that all of these symptoms were aggravating his service-connected PTSD. Under these circumstances, the Board concludes that the Veteran was treated for a condition of such a nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to health. Swinney v. Shinseki, 23 Vet. App. 257, 267 (2009) (noting that in determining whether the prudent layperson standard has been met, an adjudicator may consider both medical and lay evidence; however, medical evidence finding an emergency existed is not required). Finally, the Board finds that a VA or federal facility was not shown to be feasibly available to the Veteran during the course of this treatment. The evidence of record reflects that the Veteran lived over 60 miles to the nearest VA treatment facility. Moreover, the record reflects that treatment may not have been available at that facility. Specifically, the record reflects that the Veteran was approved for chiropractic treatment from this treatment provider both before this course of treatment, as well as the moth thereafter, beginning in September 2010. In conclusion, all of the criteria for reimbursement of the unauthorized medical expenses under 38 U.S.C.A. § 1728 have been met. Therefore, the appeal is granted. ORDER Entitlement to payment or reimbursement of medical expenses not previous authorized for private medical services, consisting of nine chiropractic visits between June 30, 2010 and August 24, 2010, at the Newport Chiropractic Center, is granted. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs