Citation Nr: 1340606 Decision Date: 12/09/13 Archive Date: 12/20/13 DOCKET NO. 11-18 167 ) DATE ) ) On appeal from the Department of Veterans Affairs North Florida/South Georgia Veterans Health System in Gainesville, Florida. THE ISSUE Entitlement to payment or reimbursement for the cost of medical treatment received at Munroe Regional Medical Center (MRMC) on July 6, 2010. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran had active military service from July 1965 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision by the North Florida/South Georgia Veterans Health System in Gainesville, Florida. In May 2012, the Veteran and his wife testified during a hearing at the RO before the undersigned; a transcript of that hearing is of record. FINDINGS OF FACT 1. At the time of the July 6, 2010 private medical treatment received at the MRMC emergency room, the Veteran had been awarded a total disability evaluation based on individual unemployability due to his service-connected disabilities (TDIU). 2. On July 6, 2010, the Veteran received medical treatment that was not previously authorized by VA for bleeding from a post-surgical skin graft on his forehead. 3. At the time the Veteran began bleeding, VA facilities were not feasibly available and an attempt to use them beforehand would not have been reasonable. 4. The care rendered to the Veteran in the MRMC emergency room was rendered during a medical emergency of such nature that a prudent layperson would reasonably have expected that delay in seeking immediate medical attention would be hazardous to health. 5. There is no indication in the evidence of record that at the time the emergency services were rendered the Veteran could have been transferred safely to a VA facility or that such facility was capable of accepting such transfer. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria are met for payment or reimbursement of the unauthorized medical expenses incurred on July 6, 2010 at MRMC. 38 U.S.C.A. §§ 1703(a), 1728, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 17.52(a), 17.120, 17.1000-17.1002 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board is granting the requested benefit in full as discussed below. Further discussion of any duties to notify and assist the Veteran with regard to this claim is therefore unnecessary. In claims involving payment/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 in advance by VA. 38 U.S.C.A. § 1703(a); 38 C.F.R. § 17.54. If not authorized, it must be determined whether the claimant is otherwise entitled to payment or reimbursement for services. In the present case, the evidence does not show that the Veteran sought and obtained prior proper authorization for VA payment of the private medical expenses he incurred on July 6, 2010. Payment is therefore not warranted for expenses incurred in conjunction with that treatment under 38 U.S.C.A. § 1703. When the veteran receives treatment at a non-VA facility without prior authorization, two statutes allow for payment or reimbursement for the medical expenses incurred for that treatment, specifically, 38 U.S.C.A. §§ 1725 and 1728. 38 U.S.C.A. § 1728 applies to veterans such as this one who are in receipt of a TDIU. 38 U.S.C.A. § 1728(a) provides that VA shall reimburse veterans for the customary and usual charges of emergency treatment from sources other than VA for which they have made payment. The term "emergency treatment" is defined by reference to 38 U.S.C.A. § 1725(f)(1), which provides that "emergency treatment" means medical care or services furnished when: (A) VA facilities are not feasibly available and an attempt to use them beforehand would not be reasonable; (B) such care or services are rendered in 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; and (C) until such time as the veteran can be transferred safely to a Department facility or other Federal facility and such facility is capable of accepting such transfer. For the following reasons, the Board finds that the Veteran has met each of these three statutory requirements. The evidence, including competent and credible lay statements of the Veteran, his wife, and his daughter reflects that, having recently undergone a basal cell carcinoma excision with a skin graft that became infected, the Veteran began bleeding from his forehead late on the evening of July 6, 2010. As there was blood in his eyes, the Veteran could not drive and his wife drove him to the MRMC emergency room at about 11:00pm. They went to the MRMC emergency room because it was closer than the nearest VA medical facility (7 miles compared to 80 miles) and because of the time of day. The July 6, 2010 MRMC emergency room note indicated that the Veteran was seen shortly after midnight, at which time the Veteran complained of bleeding from the surgical site although there was no bleeding at this time. The wound was dressed with gauze and nonadherent dressing. The drug order included gelatin topical sponge gelfoam. A subsequent, July 12, 2010 MRMC emergency room treatment note indicated that there was bleeding from the wound site on the forehead. The initial VA denial of reimbursement indicated that the care was deemed non-emergent, a wound check was available at a VA facility, and the emergency room note of July 6, 2010 seemed to indicate routine follow up. The second review of the claim upheld the initial determination. A handwritten note, apparently by a VA physician, indicates that, from the data provided, it did not appear that the Veteran was profusely bleeding and the bleeding was stopped by application of gel foam and pressure. The above evidence reflects at the time the Veteran began bleeding on July 6, 2010, VA facilities were not feasibly available and an attempt to use them beforehand would not have been reasonable. As confirmed by the MRMC emergency room treatment records, the bleeding began late at night and the private emergency room was much closer than the VA facility. The Board therefore concludes that it would not have been reasonable for the Veteran to drive farther to the VA facility in the hopes that it could treat him at that time, rather than the closer emergency room that would more likely provide prompt treatment. In addition, the care was rendered in a medical emergency of such nature that a prudent layperson would reasonably have expected that delay in seeking immediate medical attention would be hazardous to life or health. Although the July 6, 2010 MRMC emergency room record did not indicate that the Veteran was bleeding at that time, the Board finds the statements of the Veteran and his daughter competent and credible that prior to driving to the emergency room, he was bleeding to a degree that a prudent layperson would have thought a delay hazardous to health, even if the bleeding had resolved by the time they reached the emergency room. The subsequent treatment note showing additional bleeding from the site supports the lay testimony. Finally, there is no indication in the evidence of record that at the time the emergency services were rendered the Veteran could have been transferred safely to a Department facility or that such facility was capable of accepting such transfer. As noted, it was very late at night, the Veteran's wound was dressed, and he was released; it does not appear that it would have been feasible at that time to transfer him to a VA facility for this care or to postpone the care until a time when he could be transferred. As the Veteran has met each of the three elements required under 38 U.S.C.A. § 1728(a), entitlement to reimbursement for the cost of medical treatment received at MRMC on July 6, 2010 is warranted. ORDER Entitlement to payment or reimbursement for the cost of medical treatment received at MRMC on July 6, 2010 is granted, subject to controlling regulations governing the payment of monetary awards. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs