Citation Nr: 1414296 Decision Date: 04/02/14 Archive Date: 04/11/14 DOCKET NO. 10-47 866 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in West Palm Beach, Florida THE ISSUE Entitlement to payment of or reimbursement for private medical expenses incurred on March 21, 2009. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran had active service from February 1966 to February 1969. This appeal comes before the Board of Veterans' Appeals (Board) from a decision of August 2010 by the Department of Veterans Affairs (VA) Medical Center in West Palm Beach, Florida. The Veteran was afforded a travel Board hearing before the undersigned in January 2012. A transcript of the hearing has been associated with the claims file. FINDINGS OF FACT 1. The Veteran filed a timely claim for medical reimbursement. 2. On March 21, 2009, the Veteran had a total disability permanent in nature from a service-connected disability. 3. The care on March 21, 2009, was rendered in a medical emergency of such a nature that delay would have been hazardous to life or health, and federal facilities were not reasonably available and an attempt to use them beforehand would not have been reasonable, sound, wise or practicable. CONCLUSION OF LAW The criteria for payment of or reimbursement for unauthorized medical expenses incurred on March 21, 2009, have been met. 38 U.S.C.A. §§ 1703 1728, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 17.52, 17.53, 17.120 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board notes that the evidence currently of record is sufficient to substantiate the appellant's claim. Therefore, no further development is required. On March 21, 2009, the Veteran presented for emergency treatment at 15:13 after he tripped and fell on stairs while intoxicated. The record indicates that he was brought by ambulance to a private hospital, which he has reported is the closest hospital to the site of the fall. The Veteran has reported that he tried to refuse the ambulance and take a taxicab to the nearest VA medical facility but was not permitted by the ambulance crew to refuse transportation. The emergency treatment records reveal findings of abrasion on the anterior right elbow without bleeding and head contusion. He was discharged at 23:23. VA received a claim for reimbursement from the private hospital in July 2010. The Veteran has reported filing a claim for reimbursement within 80 days after the treatment, reporting that he discussed the matter with a VA employee at the local VA medical facility. Legal Criteria In claims involving payment/reimbursement by VA for medical expenses incurred for 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; see also Malone v. Gober, 10 Vet. App. 539, 541 (1997). This is a factual, not a medical, determination. Similes v. Brown, 6 Vet. App. 555, 557 (1994). If not authorized, it must be determined whether the claimant is otherwise entitled to payment of or reimbursement for the expenses associated with the services. The Veteran does not claim that he had (or sought) prior authorization from VA for the treatment at issue, nor is there any indication in the record of any such authorization. It is not in dispute that the private medical treatment at issue was not authorized in advance by VA. When a veteran receives treatment at a non-VA facility without prior authorization, there are two statutes that allow for him to be paid or reimbursed for the medical expenses incurred for that treatment: 38 U.S.C.A. §§ 1725 and 1728. VA has amended 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. Unless otherwise noted, the Board has considered the regulations applicable to claims filed in 2009. 38 U.S.C.A. § 1728 authorizes payment of or reimbursement for qualifying emergency services, on the basis of a claim timely filed, where: (1) such care or services were rendered in a medical emergency of such a nature that delay would have been hazardous to life or health; (2) such care or services were rendered to a veteran in need thereof (A) for an adjudicated service-connected disability, (B) for a nonservice-connected disability associated with and held to be aggravating a service-connected disability, (C) for any disability of a veteran who has a total disability permanent in nature from a service-connected disability; or (D) for any illness in the case of a veteran who is a participant in a vocational rehabilitation program that necessitates care or treatment to make possible such veteran's entrance into a course of training, prevent interruption of such course of training, or hasten completion of such course of training; and (3) VA or other Federal facilities were not reasonably available and an attempt to use them beforehand would not have been reasonable, sound, wise or practicable. 38 U.S.C.A. § 1728(a); see also 38 C.F.R. § 17.120. A VA facility may be considered as not feasibly available when the urgency of the applicant's medical condition, the relative distance of the travel involved, or the nature of the treatment required makes it necessary or economically advisable to use public or private facilities. 38 C.F.R. § 17.53. Analysis As a preliminary matter, the Board finds a timely claim was filed. VA regulations do not define "timely" with respect to a claim for reimbursement under 38 U.S.C.A. § 1728, and the Board interprets the requirement as requiring the claim to be received within a reasonable amount of time of the medical care for which reimbursement is sought. Although the record does not include the Veteran's claim for reimbursement, the Board finds the Veteran's account of going to the VA medical facility to discuss filing a reimbursement claim within 80 days of receiving the private treatment is credible. The Board further finds that the "claim" was made within a reasonable amount of time after the medical care for which reimbursement was sought. Thus, the Board finds a timely claim was filed. Furthermore, the Board finds the criteria for reimbursement under 38 U.S.C.A. § 1728 have been met. The Veteran was in receipt of a permanent and total disability rating for a service-connected disability at the time of the non-VA treatment in March 2009. Thus, the Board finds criterion (2) is met. The Board finds criterion (3) is also met. The Veteran was not in control of the choice of hospital: the Veteran was unable to drive and was not permitted to take a taxicab or otherwise travel alone, and it was the ambulance crew who determined the hospital choice. In these circumstances, the Board finds the matter analogous to a situation where federal facilities were not reasonable available and an attempt to use them was not practicable. Finally, the Board finds criterion (1) is met. Although the Veteran was alert and oriented and felt no pain at the time of admission to the hospital, he had sustained a head injury and was intoxicated. The Board finds a head injury, particularly during a state of intoxication, qualifies as a medical emergency of such a nature that delay would have been hazardous to life or health. The Board notes that this determination is in accord with the determination of the VA review physician who determined the treatment was rendered in an emergency. For these reasons outlined above, and resolving reasonable doubt in the Veteran's favor, the Board concludes that the criteria for payment of or reimbursement for expenses associated with unauthorized medical treatment furnished on March 21, 2009, under 38 U.S.C.A. § 1728, have been met. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Payment of or reimbursement for private medical expenses incurred pm March 21, 2009, is granted. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs