Citation Nr: 1806609 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 16-00 001A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Tampa, Florida THE ISSUE Entitlement to payment or reimbursement of private medical expenses incurred in connection with medical treatment on September 2, 2014 at Bayfront Health Brooksville (BHB). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from June 1961 to July 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) James A. Haley Veterans' Hospital in Tampa, Florida, by which reimbursement of private medical expenses for medical treatment provided to the Veteran by BHB on September 2, 2014 was denied. In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed the file on the "Veterans Benefits Management System" and on the "Virtual VA" system to ensure a complete assessment of the evidence. In the March 2015 Substantive Appeal (located on VBMS), the Veteran requested a Board hearing at a local VA office (Travel Board hearing). Subsequently, in a December 2015 correspondence, the Veteran waived the right to a local hearing, effectively withdrawing the request for a Travel Board hearing. Therefore, the appeal will proceed as the hearing request is considered to have been withdrawn. 38 C.F.R. § 20.702(e) (2017). This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2) (West 2012) and 38 C.F.R. § 20.900(c) (2017). FINDINGS OF FACT 1. On September 2, 2014, the Veteran received emergency medical treatment at BHB for an injury to the left leg. 2. An application for authorization was made to VA on September 2, 2014, within 72 hours after the hour of admission. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for payment or reimbursement of the private medical expenses incurred on September 2, 2014 at BHB have been met. 38 U.S.C. § 1703 (West 2012); 38 C.F.R. §§ 17.52, 17.54 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist This case concerns a legal determination of whether the appellant is entitled to reimbursement for private medical expenses under 38 U.S.C. §§ 1703 (West 2012). For this reason, the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), which describe VA's duty to notify and assist claimants in substantiating a claim for VA benefits, do not apply. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Further, as the Board is granting the benefit sought on appeal, a discussion of VA's duties to notify and assist is not necessary. Payment or Reimbursement of the Private Medical Expenses In claims involving payment or reimbursement by VA for medical expenses incurred as a result of treatment at a private facility, there are three possible theories of entitlement: (1) the private medical services were authorized by VA; (2) the veteran is entitled to payment or reimbursement for services not previously authorized that are related to or aggravated a service-connected disability; or (3) the veteran is entitled to payment or reimbursement for services not previously authorized relating to a nonservice-connected disability. See 38 U.S.C. §§ 1703(a), 1725, and 1728(a) (West 2012). Generally, the admission of a veteran to a non-VA hospital at VA expense must be authorized in advance. See 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); see 38 U.S.C.A. § 1703(a); 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, whether formal or informal, by telephone, telegraph or other communication, made by the veteran or by others in his or her behalf, is made to VA within 72 hours after the hour of admission. 38 C.F.R. § 17.54. The Veteran contends that he fell out of his bed and landed on the left leg three days prior to the private treatment at BHB on September 2, 2014. At that time, he did not seek medical treatment, however, he reported that the pain in his left leg became increasingly worse, and he believed that he had fractured his left leg as a result of the fall from his bed. See July 2015 Notice of Disagreement. Upon admission to BHB on September 2, 2014, the Veteran underwent radiological testing of the left hip, femur, knee, and ankle. While there were no fractures, the Veteran was assessed with left hip contusion, and left knee and leg sprain. The Veteran was prescribed medication for the pain, and the need to see an orthopedic surgeon for further evaluation of the symptoms was discussed. This evidence reflects that, in the case of an emergency that existed at the time of admission to BHB (on September 2, 2014), a representative from BHB notified VA, via facsimile, of the Veteran's non-VA emergency treatment at BHB on September 2, 2014, within 72 hours after admission to the emergency department of BHB (on September 2, 2014). In addition, an individual identified as the Veteran's wife, made a telephone call to VA on September 3, 2014, within 72 hours after the Veteran's admission to the emergency department of BHB on September 2, 2014. Specifically, on September 3, 2014, the individual informed VA that the Veteran developed a sharp and stabbing pain in the left leg, and sought private emergency treatment on September 2, 2014 at BHB. While the record is unclear whether the Veteran was married at the time of the emergency treatment at BHB (since medical records refer to the Veteran's "girlfriend," who accompanied the Veteran in the emergency department of BHB), the record reflects that this individual, on behalf of the Veteran, made an informal application to VA for prior authorization by notifying VA of the private medical treatment at BHB on September 2, 2014. As such, the Veteran's informal application, made on September 2, 2014 and September 3, 2014, within 72 hours after the hour of admission, may be deemed a prior authorization. Given the evidence, and with consideration of the benefit-of-the-doubt doctrine, the Board finds that the Veteran received prior authorization from VA to receive private, emergency treatment from BHB on September 2, 2014. 38 C.F.R. §§ 3.102, 17.54. ORDER Payment or reimbursement of private medical expenses incurred in connection with medical treatment on September 2, 2014 at BHB is granted. ____________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs