Citation Nr: 1339142 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 11-10 581 ) DATE ) ) Received from the Department of Veterans Affairs, Veterans Health Administration (VHA) in Denver, Colorado THE ISSUE Entitlement to payment or reimbursement for medical care provided by Flagler Hospital on November 1, 2010. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from April 1964 to April 1966. This case is before the Board of Veterans' Appeals (Board) on appeal from a December 2010 decision by the Department of Veterans Affairs (VA) Medical Center in Gainesville, Florida. Jurisdiction over the appeal currently resides with the VHA in Denver, Colorado. This 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 The most probative evidence of record shows that the Veteran is in receipt of a total rating based on individual unemployability; the medical care provided him by Flagler Hospital on November 1, 2010, was rendered in a medical emergency of such nature that delay would have been hazardous to life or health; and a VA facility was not feasibly available and an attempt to use it beforehand or obtain prior VA authorization for the services required would not have been reasonable, sound, wise, or practicable. CONCLUSION OF LAW The criteria for payment or reimbursement for medical care provided by Flagler Hospital on November 1, 2010, have not been met. 38 U.S.C.A. §§ 1703, 1710, 1725, 1728, 5100, 5101, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 17.52, 17.53, 17.54, 17.120, 17.121, 17.130, 17.1000, 17.1001, 17.1002, 17.1003 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants payment or reimbursement for medical care provided by Flagler Hospital on November 1, 2010. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. The Veteran claims that he is entitled to payment or reimbursement of the costs of the medical care provided by Flagler Hospital on November 1, 2010. Specifically, the Veteran and his representative in writings to VA claim that VA should reimburse the appellant for his emergency room visit because it was an emergency and the VA nurse that the appellant talked to before going to the emergency room agreed that it was an emergency. In this regard, the Board notes that under the current laws and regulations governing reimbursement of unauthorized medical expenses found at 38 U.S.C.A. § 1728 and 38 C.F.R. § 17.120 (see VETERANS' MENTAL HEALTH AND OTHER CARE IMPROVEMENTS ACT OF 2008, Pub. L. 110-387, October 10, 2008, 122 Stat 4110), in order to be entitled to payment or reimbursement of unauthorized medical expenses incurred at a non-VA facility, the Veteran must satisfy each of three regulatory conditions: (a) [The c]are or services . . . were rendered . . . (1) [For a]n adjudicated service-connected disability[;] (2) [For] a non-service-connected disability associated with and held to be aggravating an adjudicated service-connected disability[;] (3) [For a]ny disability of a [V]eteran if the [V]eteran has a total disability permanent in nature resulting from a service-connected disability . . . [; or] (4) [For a]ny illness, injury, or dental condition of a [V]eteran who - (A) is a participant in a vocational rehabilitation program (as defined in section 3101(9) of this title); and (B) is medically determined to have been be in need of care or treatment . . .; and (b) . . . emergency treatment not previously authorized were 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 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. Failure to satisfy any one of the above criteria precludes VA from paying or reimbursing unauthorized private medical expenses. In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). As to the first criteria, the Board finds that it is met because the Veteran has had a total rating based on individual unemployability in effect since 2004. As to the second criteria, the claims file contains a November 1, 2010, record from the North Florida/South Georgia Veterans Health System which documented the fact that at 9:00 am the Veteran's called VA. In that record, recorded by a Registered Nurse (RN), it was noted that the Veteran reported that he had had a flu vaccination ten days earlier and he has since developed a cough. Next, while the Veteran denied difficulty breathing, he nonetheless reported that he had throat soreness and swelling. The RN thereafter noted that the Veteran's voice sounded "raspy." Thereafter, under the heading "Plane" the record specifically stated that the Veteran was "[i]nstructed to go to the nearest ER for treatment." A November 1, 2010, treatment record from Flagler Hospital thereafter shows that at 9:14 am the Veteran presented himself for treatment at their emergency room with the same complaints that he had made to VA 14 minutes earlier. On the other hand, the record contains a February 2011 opinion from a VA nurse who, after the fact, opined that the Veteran's treatment at Flagler Hospital was not an emergency because his treatment at that time was for viral pharyngitis. The Boart find, as to the RN must have found at 9:00 am on November 1, 2010, that the Veteran was having an emergency because otherwise there was no reason for her to tell the claimant to "go to the nearest ER for treatment." Moreover, the Board finds this RN's opinion that the Veteran was having an emergency more probative than the subsequent February 2011 opinion because the first opinion was provided by a trained healthcare professional after actually speaking to the Veteran over the phone and hearing the state he was in as opposed to a retro-active review of the medical evidence. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases). Therefore, given the above documented history in which a VA healthcare provider, after taking the Veteran's medical history and hearing his voice, specifically directed the claimant to go to the nearest emergency room for treatment and within 14 minutes he is at this emergency room, the Board finds the most probative evidence shows that the November 1, 2010, treatment at Flagler Hospital was rendered in a medical emergency of such nature that delay would have been hazardous to life or health regardless of the fact that in the end the claimant was diagnosed with a non life threatening problem. As to the third criteria, according to the information found on the November 1, 2010, evidence from Flagler Hospital, the Veteran lived approximately 5 miles from Flagler Hospital and 77 miles from the Gainesville VA Medical Center. Therefore, given the above documented history in which a VA healthcare provider specifically directed the claimant to go to the nearest emergency room for treatment and the fact that the Flagler Hospital emergency room was 5 miles away, whereas the VA Medical Center was almost 80 miles away, the Board finds that a VA facility was not feasibly available and an attempt to use it beforehand or obtain prior VA authorization for the services would not have been reasonable, sound, wise, or practicable. Accordingly, the Board finds that the criteria for reimbursement of unauthorized medical expenses under 38 U.S.C.A. § 1728 and 38 C.F.R. § 17.120 have been met. ORDER Entitlement to payment or reimbursement of unauthorized medical expenses incurred as a result of medical care provided by Flagler Hospital on November 1, 2010, is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs