Citation Nr: 18155285 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-27 167 DATE: December 4, 2018 ORDER Eligibility for payment or reimbursement for medical expenses incurred at Bryan Medical Center (BMC) from April 22-23, 2015, subject to the payment limitation provisions of 38 C.F.R. § 17.1005, is granted. FINDING OF FACT As the Veteran’s admission to BMC on April 22, 2015, was an emergency, VA’s post-admission authorization is prior authorization as the application for and the provision of authorization was given within 72 hours of his admission. CONCLUSION OF LAW The criteria for eligibility for payment or reimbursement for unauthorized medical expenses incurred at BMC from April 22-23, 2015, subject to the payment limitation provisions of 38 C.F.R. § 17.1005, are met. 38 U.S.C. §§ 1703, 5107; 38 C.F.R. §§ 17.54, 17.1005. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from January 1966 to January 1969, with service in the Republic of Vietnam where he was awarded a Purple Heart for his wounds suffered in combat. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 letter of determination by a Department of Veterans Affairs (VA) Medical Center. In short, on April 22, 2015, service connection had already been established for posttraumatic stress disorder (PTSD), diabetes mellitus with associated diabetic neuropathy of the bilateral lower extremities, bilateral hearing loss, tinnitus, residual shrapnel scars, urticarial dermographism, and lumbar spine disabilities; his combined evaluation was 70 percent disabling. The Veteran would eventually be awarded service connection for coronary artery disease (CAD) in a June 2015 rating decision, with an assigned effective date of April 30, 2015. On April 22, 2015, the Veteran suffered a heart attack. He was admitted to BMC’s emergency room at that time for treatment for his heart attack; admission notes that the Veteran had suffered intermittent chest pain for a week, but that on April 22, 2015, he was sitting at home and suffered sharp chest pains and sought treatment at BMC, the closest emergency room to his home. VA was notified of the Veteran’s admission at BMC and noted that the Veteran would be eligible for VA treatment when he was stable for transfer in light of his service connected status; VA authorized emergency room treatment at that time. Before the Veteran could be transferred to VA for further treatment, the Veteran was discharged home from BMC. The Board reflects that the Agency of Original Jurisdiction (AOJ) in this case has denied the Veteran under 38 U.S.C. §§ 1725 and 1728, noting that at the time of admission service connection had not yet been established for the Veteran’s CAD and therefore 38 U.S.C. § 1728 is inapplicable in this case, which the Board finds is correct. Even though service connection was later established for CAD, it had not been established as of the date of treatment and therefore 38 U.S.C. § 1728 is not applicable in this case. The Board further reflects that the AOJ denied payment or reimbursement under 38 U.S.C. § 1725 in this case as the Veteran had third-party coverage—Medicare Part A and B—in this case; the AOJ denied payment under 38 U.S.C. § 1725 on that basis, which is a mis-application of the law in this case, as any medical expenses not extinguished by the third-party insurance contract is recoverable. See Staab v. McDonald, 28 Vet. App. 50 (2016). Regardless, the Board will not remand the claim at this time for further development under 38 U.S.C. § 1725, and the Board finds that an award of eligibility for payment is proper under 38 U.S.C. § 1703. The Board notes that when VA facilities or other government facilities are not capable of furnishing economical hospital care or medical services because of geographic inaccessibility or are not capable of furnishing care or services required, VA may authorize or contract with non-VA facilities for care. 38 U.S.C. § 1703(a); 38 C.F.R. § 17.52(a). Further, in general, if VA is to provide payment or reimbursement of medical expenses incurred in connection with a Veteran’s care at a non-VA hospital, the care must be authorized in advance. See 38 U.S.C. § 1703; 38 C.F.R. § 17.54. In the case of an emergency that existed at the time of admission, an authorization may be deemed a prior authorization if an application is made to VA within 72 hours after the hour of admission. 38 C.F.R. § 17.54. Whether treatment was authorized is a factual, not a medical, determination. Similes v. Brown, 5 Vet. App. 555 (1994). A review of the VA treatment records documents that the VA medical staff in this case clearly authorized the Veteran’s emergency room treatment. Given that a heart attack is clearly a medical emergency that existed at the time of the Veteran’s admission, the Veteran’s post-admission VA authorization is deemed a prior authorization as application was made within 72 hours of his admission and such authorization was granted. Although the Veteran has not provided evidence of the amount that he is personally liable for in this case, the Veteran stated that he submitted medical bills with regard to this episode of care, although such is not of record at this time. Regardless of this fact, the Board reflects that the such evidence is of no consequence as to whether the Veteran is eligible for payment or reimbursement of any outstanding medical expenses in this case. Accordingly, subject to the payment limitations of 38 C.F.R. § 17.1005, the Board finds that eligibility for payment or reimbursement for medical expenses incurred at BMC from April 22-23, 2015, is warranted in this case based on the evidence of record at this time. See 38 U.S.C. § 1703; 38 C.F.R. § 17.54; Similes, supra. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Peters, Counsel