Citation Nr: 21065986 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 13-07 265 DATE: October 28, 2021 ORDER Entitlement to payment or reimbursement for the cost of medical treatment received at Banner Del Webb Medical Center on October 15, 2011 is granted. FINDING OF FACT The treatment received at Banner Del Webb Medical Center on October 15, 2011 was for a condition for which a prudent layperson would have believed that immediate medical attention was necessary to avoid hazard to health, and a VA facility was not feasibility available to provide the treatment. CONCLUSION OF LAW The criteria for payment or reimbursement for the cost of medical treatment received at Banner Del Webb Medical Center on October 15, 2011 have been met. 38 U.S.C. § 1728; 38 C.F.R. § 17.1002. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had a period of ACDUTRA from May 1989 to September 1989 and from October 1993 to July 1995. In July 2013, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing at the VA regional office in Phoenix, Arizona; a transcript is of record. This claim was previously before the Board in October 2013, at which time the Board remanded it for additional development. The requested development has been completed, and the claim is properly before the Board for appellate consideration. Entitlement to payment or reimbursement for the cost of medical treatment received at Banner Del Webb Medical Center on October 15, 2011 Initially, under 38 U.S.C. § 1703, 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). However, the Veteran has never contended, and the evidence does not demonstrate, that he received prior VA written authorization for his private treatment on October 15, 2011. Therefore, application of 38 U.S.C. § 1703(a) for reimbursement of authorized private treatment is unwarranted. The issue of prior authorization is thus not applicable. To receive payment or reimbursement under 38 U.S.C. § 1728 for the expenses of emergency treatment, not previously authorized, in a private or public (or Federal) hospital not operated by VA, the following three conditions must be satisfied: The treatment was for an adjudicated service-connected disability, or for any disability when the veteran has a total disability permanent in nature resulting from a service-connected disability; and The treatment was for 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; and 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 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. § 1728(a); 38 C.F.R. § 17.120. The standard for finding that services were rendered in a "medical emergency" under 38 U.S.C. § 1728 is the same as that defined in 38 U.S.C. § 1725. Therefore, the claim for payment or reimbursement for initial evaluation and treatment must be for a condition of such a nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to his 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. § 17.1002(b). As of October 11, 2011, service connection was in effect for lumbar spine degenerative disc disease, rated 40 percent; left knee status post arthroplasty, rated 100 percent (30 percent as of November 1, 2011); left shoulder degenerative arthritis, rated 20 percent; right hip degenerative arthritis, rated 10 percent; trochanteric pain syndrome, rated 10 percent; right knee non-specific pain, rated 10 percent; and a left knee scar, rated noncompensable. The combined rating as of October 15, 2011 was 100 percent, and was 80 percent as of November 1, 2011. The Veteran was treated at a VA emergency room on October 14, 2011 for back pain. He requested an injection for pain relief and an alternate pain medication. The Veteran said that the pain was unchanged from when he saw his primary care physician. He was discharged with a prescription for Percocet and was to follow up with his primary care physician. The treatment records from Banner Del Webb Medical Center show that the Veteran was treated in the emergency department for back pain on October 15, 2011. Therefore, the criteria regarding a service-connected disability have been met since service connection was in effect for lumbar spine degenerative disc disease. See 38 U.S.C. § 1728; 38 C.F.R. § 17.120. At Banner Del Webb Medical Center, the Veteran reported lumbar pain with gradual onset over three days. The pain was described as severe and achy. There was improvement after valium and morphine were administered. The Veteran was discharged with a prescription for valium. The Veteran testified at the July 2013 Board hearing that on October 15, 2011 he went to the VA emergency room in severe pain. He was sent to the primary care clinic without being triaged, where he had still not been seen after two hours. He further testified that his wife notified VA personnel that they were going elsewhere for the Veteran to be treated. The Veteran did not believe that he was going to be treated in an expedient manner by VA. He noted that he was usually given Toradol for his back, and that at Banner Del Webb he was given morphine and valium, which shows how severe the pain was. The Board finds that the October 15, 2011 treatment was for a condition such that a prudent layperson who possessed an average knowledge of general health and medicine would reasonably have expected that the absence of immediate treatment would have placed the health of the Veteran in serious jeopardy or caused serious impairment to bodily functions. See 38 C.F.R. § 17.1002(b). The Veteran was in severe pain for which he was prescribed a narcotic. Furthermore, the Banner Del Webb Medical Center emergency room discharge instructions included returning if the pain worsened. Regarding the potential availability of a VA or other federal facility, the Veteran testified that he went to the VA emergency room, which sent him to the primary care clinic, where he waited for two hours in severe pain without any indication of when he would be treated. Therefore, the record shows that expedient VA treatment was unavailable to the Veteran for his back pain on October 15, 2011. An attempt to continue to wait until VA could treat him would not have been considered prudent by a layperson. Accordingly, the Board finds that based on the evidence of record in this case, payment or reimbursement of unauthorized medical expenses incurred at Banner Del Webb Medical Center on October 15, 2011 October 15, 2011, is warranted. 38 U.S.C. §§ 1728; 38 C.F.R. §§ 17.52, 17.120, 17.121. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott Shoreman, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. § 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. § 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. § 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. § 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. § 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. § 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. § 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED