Citation Nr: 1338046 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 11-17 223 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Charleston, South Carolina THE ISSUE Entitlement to reimbursement for private medical treatment expenses incurred at Murrells Inlet Dialysis on June 2, 2010, August 2, 2010, and September 1, 2010. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The Veteran had active duty service from June 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2010 decisions by a Medical Center of the Department of Veterans Affairs (VA). A notice of disagreement was received in January 2011, a statement of the case was issued in April 2011, and a substantive appeal was received in May 2011. A Board hearing was conducted in October 2011. The Board notes that it has reviewed both the Veteran's physical claims file and Virtual VA to ensure that the complete record is considered. FINDINGS OF FACT 1. The Veteran received dialysis treatment at Murrells Inlet Dialysis on June 2, 2010, August 2, 2010, and September 1, 2010 for his service-connected kidney disability. 2. The Veteran's service-connected kidney disability treated at Murrells Inlet Dialysis on June 2, 2010, August 2, 2010, and September 1, 2010 was of such a nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. 3. Treatment from a VA or fee-basis facility was not feasibly available on the dates in question, and an attempt to use such facilities beforehand or obtain prior VA authorization for the services required would not have been reasonable, sound, wise, or practicable, or treatment would have been refused. CONCLUSION OF LAW The criteria for entitlement to reimbursement for private medical treatment expenses incurred at Murrells Inlet Dialysis on June 2, 2010, August 2, 2010, and September 1, 2010 have been met. 38 U.S.C.A. §§ 1703, 1728, 5107 (West 2002); 38 C.F.R. §§ 17.52, 17.53, 17.55, 17.120, 17.1000-17.1008 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. However, in light of the granting of the claim, further discussion of the VCAA is not necessary. Laws and Regulations The Board notes that, effective January 20, 2012, VA amended its regulations concerning reimbursement for emergency hospital care and medical services provided to eligible veterans for service-connected and nonservice-connected conditions at non-VA facilities. The purpose of these amendments is to implement provisions from § 402 of the Veterans' Mental Health and Other Care Improvements Act of 2008 (the Act), Public Law No. 110-387, 122 Stat. 4110, which revised 38 U.S.C.A. §§ 1725 and 1728. Under 38 U.S.C.A. § 1728 and 38 C.F.R. § 17.120, VA may reimburse veterans for unauthorized medical expenses incurred at non-VA facilities where: (a) For veterans with service-connected disabilities, emergency treatment not previously authorized rendered to a veteran in need of such emergency treatment: (1) for a service-connected disability; (2) for nonservice-connected disabilities associated with and held to aggravating a service-connected disability; (3) for any disability of a veteran who has a total disability permanent in nature resulting from a service-connected disability; or (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. Chapter 31 and who is medically determined to be in need of hospital care or medical services for any of the reasons enumerated in 38 C.F.R. § 17.47(i)(2); and (b) in a medical emergency, treatment not previously authorized 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; and (c) when 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. All three of these statutory requirements must be met before the reimbursement may be authorized. See Zimick v. West, 11 Vet. App. 45, 49 (1998); Hayes v. Brown, 6 Vet. App. 66, 68 (1993). Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim; if so, the claim is denied. If the evidence is in support of the claim, or is in equal balance, the claim is allowed. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The record reflects that the Veteran began receiving dialysis treatment for his service-connected kidney disability in March 2008. From March 2008 to June 1, 2010, and from November 2010 until May 2011 (at which time he underwent a kidney transplant and ceased to require dialysis), he was authorized to undergo dialysis treatment at private medical facilities in accordance with fee-basis contracts approved by VA. During the gap period of time between June 2, 2010 and November 2010, when a fee-basis contract was not in effect, the Veteran received dialysis treatment at Murrells Inlet Dialysis on June 2, 2010, August 2, 2010, and September 1, 2010 for his service-connected kidney disability. At his October 2011 hearing, the Veteran testified that if he had not sought the dialysis treatment at Murrells Inlet Dialysis on June 2, 2010, August 2, 2010, and September 1, 2010, that he would have "probably died within two days." He also testified that he was not aware that his fee-basis contract had ended on June 1, 2010 until he began receiving letters from VA in October 2010; at that point, he sought help from his primary care provider to obtain another fee-basis contract, which began in November 2010. Geographical research reflects that the Veteran's home address is located approximately 6 miles away from Murrells Inlet Dialysis. While the Myrtle Beach, South Carolina VA Primary Care Clinic is located approximately 9 miles away from the Veteran's home address, this facility does not provide any urgent or emergent care. The closest VA Medical Center to the Veteran's home address is located in Charleston, South Carolina, approximately 75 miles away. The Board finds that all three of the statutory requirements under 38 U.S.C.A. § 1728 and 38 C.F.R. § 17.120 have been met with regard to the emergency treatment not previously authorized that the Veteran received at Murrells Inlet Dialysis on June 2, 2010, August 2, 2010, and September 1, 2010. Such treatment consisted of dialysis for his service-connected kidney disability; his service-connected kidney disability which was treated was of such a nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health; and treatment from a VA or fee-basis facility was not feasibly available on the dates in question, and an attempt to use such facilities beforehand or obtain prior VA authorization for the services required would not have been reasonable, sound, wise, or practicable, or treatment would have been refused. Therefore, the Board concludes that reimbursement for private medical treatment expenses incurred at Murrells Inlet Dialysis on June 2, 2010, August 2, 2010, and September 1, 2010 is warranted. ORDER Entitlement to reimbursement for private medical treatment expenses incurred at Murrells Inlet Dialysis on June 2, 2010, August 2, 2010, and September 1, 2010 is warranted. The appeal is granted. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs