Citation Nr: 18140308 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 15-27 074A DATE: October 2, 2018 ORDER Payment of medical expenses incurred at Memorial Health System of East Texas (MHS) on April 24, 2012, and April 30, 2012, is granted. FINDINGS OF FACT 1. The Veteran’s April 24, 2012, surgery at MHS was rendered in a medical emergency reasonably expected to have been hazardous to health if immediate medical attention had been delayed, no VA-related facility was feasibly available, and obtaining prior authorization for such surgery was not practicable. 2. Prior to the Veteran’s April 30, 2012, treatment—a necessary continuation of care for the condition for which emergency treatment was provided—the appellant notified VA that the Veteran could be transferred for his hand treatment, and VA effectively rejected the transfer. CONCLUSION OF LAW The criteria for payment of medical expenses incurred at MHS on April 24, 2012, and April 30, 2012, have been met. 38 U.S.C. §§ 1728, 5107; 38 C.F.R. §§ 17.120, 17.121. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 2004 to February 2007. He received medical treatment at MHS on April 24, 2012, and April 30, 2012. The appellant represents the medical provider at MHS, and seeks payment of the expenses of such treatment. In the absence of prior appropriate authorization under 38 C.F.R. §§ 17.53 and 17.54, under 38 U.S.C. § 1728, a Veteran who has a total disability, permanent in nature, resulting from a service-connected disability is entitled to payment or reimbursement of unauthorized medical expenses incurred at a non-VA facility when it is also shown that (1) the services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health, and (2) no VA or other Federal facilities were feasibly available and an attempt to use them beforehand would not have been reasonable. 38 U.S.C. § 1728; 38 C.F.R. § 17.120. The provisions of 38 U.S.C. § 1728 are implemented under 38 C.F.R. §§ 17.120-32. For payment under 38 U.S.C. § 1728, the following conditions must be met: Treatment must be rendered in a medical emergency 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. This standard would be met if a situation involved 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. 38 C.F.R. § 17.120(b). 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 C.F.R. § 17.120(c). Claims for payment or reimbursement of the costs of emergency treatment not previously authorized may only be approved for continued, non-emergency treatment, if: (1) The non-VA facility notified VA at the time the veteran could be safely transferred to a VA facility (or other Federal facility that VA has an agreement with to furnish health care services for veterans), and the transfer of the veteran was not accepted; and (2) The non-VA facility made and documented reasonable attempts to request transfer of the veteran to a VA facility (or to another Federal facility that VA has an agreement with to furnish health care services for veterans), which means the non-VA facility contacted either the VA Transfer Coordinator, Administrative Officer of the Day, or designated staff responsible for accepting transfer of patients, at a local VA (or other Federal facility) and documented such contact in the veteran’s progress/physicians’ notes, discharge summary, or other applicable medical record. 38 C.F.R. § 17.121. The Veteran received emergency treatment for an accidental gunshot injury to his left index finger on April 2, 2012, at MHS. On April 24, 2012, at MHS, the Veteran underwent surgical correction of excessive malrotation of the left index finger by replacing crossed K-wires and debridement of wound at dorsum of left index finger, rotation flap coverage over bare bone, and split-thickness skin graft to donor rotation site. On April 30, the finger and skin graft were again examined at MHS, and the Veteran was provided an aluminum foam-back splint to immobilize his index and middle fingers at the palm and secure them together. At the time of his treatment at MHS, the Veteran had a service-connected disability considered permanent and total by VA. However, as reflected in its July 2015 statement of the case, the agency of original jurisdiction (AOJ) denied payment for the Veteran’s treatment at MHS on April 24 and April 30 on the basis that such treatment was for an elective, planned procedure that could have been set up and treated through a VA Medical Center (VAMC). As reflected in the appellant’s June 2015 notice of disagreement and August 2015 substantive appeal, as well as the testimony before the Board in October 2017, she asserts that, prior to the April 24 surgery, she attempted on four separate occasions to contact someone at both the local VA clinic and the nearest VAMC to get approval or instruction regarding transfer of care of the Veteran, but no one answered or called them back. She also attempted to contact the consult management department at VA on April 25 and left a message for a call back, but never received a response. The appellant asserts that the Veteran was in a situation where he was prevented from traveling to the VAMC, that the surgery performed was to save his left index finger, and that attempts to get it approved by VA were ignored. The surgeon at MHS testified that the Veteran would have lost his index finger without the April 24, 2012, surgery. The appellant testified that they were willing to perform the medical treatment on April 24 and 30 with VA’s approval or transfer the Veteran to VA, depending on what instruction they were given by VA, but received no response when attempting to contact VA. The appellant and surgeon further asserted that the April 30 treatment with a splint was necessary follow-up treatment for the April 24 surgery. The appellant’s assertions are essentially the same she made in August and October 2012 letters to VA requesting payment, and in an October 2012 communication with a Member of Congress. The appellant’s claim for payment is granted. Initially, the Board finds that the Veteran’s April 24, 2012, surgery at MHS was rendered in a medical emergency reasonably expected to have been hazardous to health if immediate medical attention had been delayed, no VA-related facility was feasibly available, and obtaining prior authorization for such surgery was not practicable. The medical evidence of record, including the surgeon’s sworn testimony in October 2017, reflects that the Veteran’s hand function would have been permanently damaged, and that he would have lost his left index finger, had the August 24 surgery not been performed immediately. Also, as asserted by the appellant, they made numerous attempts to contact VA for approval of such surgery or instruction for transfer, but received no response. VA has not denied or responded to the appellant’s assertions of such attempts to contact VA regarding the Veteran’s treatment, or produced any records contradicting these assertions. Given this, the Board finds that the conditions for payment under 38 U.S.C. § 1728 for a medical emergency on April 24, 2012, have been met. Regarding the April 30 treatment—a necessary continuation of care for the condition for which emergency treatment was provided—again, the appellant has credibly asserted that she made multiple attempts to contact VA regarding the Veteran’s left-hand treatment, both prior to and after the April 24 surgery, and received no response. She has asserted and testified that they were willing to transfer the Veteran for his treatment to VA had they been instructed to do so, but were not, as VA never responded to their requests for instruction on whether to transfer or treat the Veteran. The Board thus finds that the appellant notified VA that the Veteran could be transferred for his hand treatment, and that VA effectively rejected the transfer of the Veteran through lack of any response to the appellant’s requests. Furthermore, again, the appellant asserted and testified under oath as to attempting numerous times to contact two separate VA facilities, and receiving no response or direction regarding the Veteran’s treatment. She noted these unsuccessful attempts in the August and October 2012 letters to VA, and in an October 2012 communication with a Member of Congress. Again, VA has not denied or responded to the appellant’s assertions of their attempts to contact VA regarding the Veteran’s treatment, or produced any records contradicting these assertions. Given these circumstances, and resolving reasonable doubt in the appellant’s favor, the Board finds that the appellant sufficiently documented reasonable attempts to request transfer of the Veteran to a VA facility. Thus, payment for continued treatment on April 30, 2012, is also warranted under 38 U.S.C. § 1728. Accordingly, payment of medical expenses incurred at MHS on April 24, 2012, and April 30, 2012, are granted. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Andrew Mack, Counsel