Citation Nr: 1621713 Decision Date: 05/31/16 Archive Date: 06/08/16 DOCKET NO. 14-19 790 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in West Palm Beach, Florida THE ISSUES 1. Entitlement to payment or reimbursement of unauthorized medical expenses incurred during treatment at the South Florida Orthopaedics and Sports Medicine on July 20, 2011. 2. Entitlement to payment or reimbursement of unauthorized medical expenses incurred during treatment at the Treasure Coast Center for Surgery on August 3, 2011. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from July 1983 to February 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 decision of the VA Medical Center (VAMC) in West Palm Beach, Florida. A private attorney was previously noted as the representative in this matter. At the Veteran's April 2016 hearing before the Board, the Veteran clarified that the attorney did not represent him in this current appeal. Accordingly, the Board considers the Veteran to be self-represented in this matter. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2014); 38 C.F.R. § 20.900(c) (2015). FINDINGS OF FACT 1. On July 20, 2011, and August 3, 2011, care and services were rendered for sacroiliac (SI) joint trouble; the Veteran had a total disability permanent in nature from service-connected disabilities at the time. 2. The medical care that the Veteran received on July 20, 2011, and August 3, 2011, was not preauthorized by VA. 3. A prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. 4. At the time of treatment, the VAMC was not feasibly available and an attempt to use it beforehand would have been hazardous to life or health. CONCLUSIONS OF LAW 1. The criteria for payment or reimbursement of unauthorized medical expenses incurred during treatment at the South Florida Orthopaedics and Sports Medicine on July 20, 2011, have been met. 38 U.S.C.A. §§ 1725, 1728 (West 2014); 38 C.F.R. §§ 17.120, 17.1002, 17.1004 (2015). 2. The criteria for payment or reimbursement of unauthorized medical expenses incurred during treatment at the Treasure Coast Center for Surgery on August 3, 2011, have been met. 38 U.S.C.A. §§ 1725, 1728 (West 2014); 38 C.F.R. §§ 17.120, 17.1002, 17.1004 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks payment or reimbursement for the medical care that he received during treatment on July 20, 2011, and on August 3, 2011. At the time of his treatment, service-connection had been granted for residuals of a cervical spine injury, dysthymic disorder with somatization, recurrent genital herpes, and peripheral neuropathy of the bilateral upper extremities. A total rating based on individual employability due to service-connected disabilities (TDIU) is also in effect, and was in effect at the time of the care in question. Reimbursement of certain medical expenses is available only where emergency treatment not previously authorized was rendered requires satisfaction of all of the following: (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 38 U.S.C.A. § 1728 must be met). In March 2014, a VA clinician reviewed the claims file and it was determined that VA facilities were feasibly available at the time of the private treatment at issue. It also shows that the private treatment providers had not submitted proper medical billing formats within 90 days of the date of service. The Veteran testified before the Board in April 2016, that the condition necessitating private treatment started in June 2011 when his SI joint gave out and his leg was dragging around behind him. He testified that he sought VA treatment and received an injection that did not help. He testified he was sent to the pain management clinic and was scheduled for therapy to begin in two months. The Veteran testified that while he was waiting for therapy to begin, he made repeated phone calls to VA for treatment in June and July 2011. He testified calling several times and receiving no response. The Veteran testified that he sought private treatment on July 20, 2011, and that he was sent home. He testified that that same day he was hospitalized at VA and was admitted to critical care. He also testified that he again had to seek treatment on August 3, 2011, and received an epidural for his pain. He testified that because VA would not accommodate him, he had to seek private treatment. Based on a review of the evidence, the Board concludes that payment or reimbursement of unauthorized medical expenses incurred during treatment at the South Florida Orthopaedics and Sports Medicine on July 20, 2011, and incurred during treatment at the Treasure Coast Center for Surgery on August 3, 2011, is warranted. Initially, although the Veteran's claim was denied, in part, on the basis that his claim was not timely received within 90 days of the treatment at issue, the 90 day time limit applies for claims for payment or reimbursement under 38 U.S.C.A. § 1725. 38 C.F.R. § 17.1004. In this case, as discussed below, the Board is granting under 38 U.S.C.A. § 1728. VA regulations do not define "timely" with respect to a claim for reimbursement under 38 U.S.C.A. § 1728. Although the Veteran's original claim is not of record, the decision on appeal was sent to the Veteran in November 2011. As such, the Veteran's claim was at least received by then, only a few months after the last date of treatment in August 2011. Consequently, the Board concludes that the Veteran's claim was timely. In this case, the evidence fails to show that the emergency treatment provided to the Veteran on July 20, 2011, and August 3, 2011, was preauthorized. Indeed, the Veteran has not contended that he sought authorization from VA prior to his seeking the private treatment at issue. Rather, he testified calling VA numerous times in June and July 2011 and receiving no response. TDIU was in effect at the time of the treatment at issue. The private treatment on July 20, 2011, and August 3, 2011, 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. In this case, the Veteran testified that the problems he was having with his SI joint were so bad that his leg was dragging behind him. Considering the fact that he testified that his leg "would not work," the Board finds it reasonable to conclude that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. The Board also finds that VA or other Federal facilities were not feasibly unavailable. Here, the Veteran testified that he called VA for appointments for two months with no response. He testified that when he initially sought treatment at the VAMC in June 2011, he was told that it would be two months before he could start physical therapy for treatment. Given that the VAMC was not responsive to the Veteran's numerous telephone calls seeking treatment and that he was told it would be a couple of months before he could begin therapy, the Board concludes that VA facilities were not feasibly available and an attempt to use them would not have been considered reasonable by a prudent layperson. Therefore, following a review of the evidence, and in affording the Veteran the benefit-of-the-doubt, the Board finds that the criteria for payment or reimbursement of unauthorized medical expenses incurred during treatment at the South Florida Orthopaedics and Sports Medicine on July 20, 2011, and incurred during treatment at the Treasure Coast Center for Surgery on August 3, 2011, have been met. 38 C.F.R. § 17.1002. Accordingly, the Board finds that entitlement to payment or reimbursement of the unauthorized medical expenses at issue is warranted. ORDER Entitlement to payment or reimbursement of unauthorized medical expenses incurred during treatment at the South Florida Orthopaedics and Sports Medicine on July 20, 2011, is granted. Entitlement to payment or reimbursement of unauthorized medical expenses incurred during treatment at the Treasure Coast Center for Surgery on August 3, 2011, is granted. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs