Citation Nr: 22049167 Decision Date: 08/30/22 Archive Date: 08/29/22 DOCKET NO. 17-28 326A DATE: August 30, 2022 ORDER Entitlement to medical expense reimbursement or payment for non-VA dental care by Restorative Aesthetic Dentistry PC from November 2007 to December 2009, specifically January 25, 2008, subject to any regulatory limitations on payment or reimbursement is granted. FINDING OF FACT On January 25, 2008, the Veteran had emergency dental treatment at a non-VA facility related to a dental issue that occurred during active service; from November 2007 to December 2009, the Veteran sought treatment at Restorative Aesthetic Dentistry PC related to the in-service dental issue; the emergency dental care was of such 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. CONCLUSION OF LAW The criteria for payment or reimbursement for unauthorized dental expenses incurred as a result of non-VA dental treatment rendered from November 2007 to December 2009, specifically January 25, 2008, have been met. 38 U.S.C. §§ 1703, 1725, 1728, 5107; 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120, 17.121, 17.1002,17.1005. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1970 to June 1982 and in the United States Air Force from August 1990 to May 2005. For the Veteran's meritorious service, he was awarded (among other decorations) the Bronze Star, Army Commendation Medal, Vietnam Service Medal, and Vietnam Campaign Medal. This matter comes before the Board of Veterans' Appeals (Board) from September 2010 correspondence issued by the Eastern Colorado Health Care System (ECHCS). The Veteran's dental claim has a lengthy and complicated procedural history. In a separate June 2009 Board decision, the Board granted entitlement to service connection for a dental disorder for VA treatment purposes, solely for the purpose of obtaining VA outpatient dental treatment on a one-time basis. As a result, ECHCS provided the Veteran with the one-time outpatient VA dental treatment in December 2009. Since that time, the Veteran has consistently maintained the December 2009 treatment was not in compliance with the 2009 Board decision. The Veteran responded to correspondence from ECHCS with a notice of disagreement. However, ECHCS never responded with a statement of the case (SOC). The matter came before the Board in September 2016 and the Board remanded the matter in order to obtain the SOC. ECHCS issued the SOC in June 2017, denying reimbursement for non-VA dental treatment under 38 U.S.C. § 1728. The June 2017 SOC stated the Veteran's non-VA dental care was non-emergent. In the July 2017 substantive appeal (VA Form 9), the Veteran requested a hearing. In November 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. VA is authorized to reimburse veterans for emergency medical treatment under 38 U.S.C. § 1725 and 38 U.S.C. § 1728. Reimbursement or payment for expenses not previously authorized may be made only if each of the following criteria are met: (a) for veterans with service connected disabilities, treatment not previously authorized is rendered for (1) an adjudicated service-connected disability; or (2) a nonservice-connected disability associated with and held to be aggravating an adjudicated service-connected disability; or (3) any disability of a veteran who is permanently and totally disabled as a result of a service-connected disability; or (4) for any illness, injury or dental disability in the case of a veteran who is participating in a rehabilitation program under 38 U.S.C. Chapter 31; (b) such treatment was rendered in a medical emergency of such nature that delay would have been hazardous to life or health; and (c) VA or other Federal facilities were not feasibly available, and an attempt to use them beforehand would not have been reasonable, sound, wise, or practical. See 38 U.S.C. § 1728; 38 C.F.R. § 17.120. Failure to satisfy any one of the three criteria listed above precludes VA from paying unauthorized medical expenses incurred at a private hospital. 38 C.F.R. § 17.120; Zimick v. West, 11 Vet. App. 45, 49 (1998). The record reflects at the episodes of care were evaluated under 38 U.S.C. § 1728, given the Veteran is permanently and totally disabled as a result of a service-connected disability. In the instant case, a review of the record indicates the Veteran meets the remaining requisite criteria set forth above. 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 life or health. This standard would be met if a situation involved acute symptoms of sufficient severity 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 body part. See 38 C.F.R. § 17.120 (b). In this case, the Veteran has testified and consistently advised the VA that his dental issue began in-service. The Board notes his dental service treatment records support in-service bridge issues while he was deployed. His dental STR reflect that in March 2005 he was not provided a complete dental exam and appropriate treatment prior to separation. He had continued dental treatment in April 2005 where his STR state he needs repairs on a new bridge and then in May 2005 his bridge was loose and notes show he needed it replaced. In June 2005, his STR state the bridge did not fit properly and they took a new impression. The Veteran testified at his hearing that upon retirement from service, his dental issue that had occurred in-service was not resolved and the VA attempted to continue his dental treatment. The Veteran advised he attempted to seek treatment upon retirement from active service to resolve the dental issue from his deployment. He reported he was continuously rejected as ineligible for treatment. At that time, the Veteran filed a claim with VA for dental coverage, to attempt to get his dental issue resolved. During the pending appeal (which resulted in the June 2009 Board decision), the Veteran's dental condition ultimately became an emergency. The Veteran reported he attempted to be seen by VA for the dental work, but while that was pending, he ultimately was forced to seek emergency non-VA dental treatment. The Veteran testified that he was on a liquid diet up until the non-VA dental treatment completed the repair. In June 2009, the Veteran's private dentist, Dr. M.W. submitted a private opinion. Dr. M.W. stated that in-service, the Veteran had several teeth removed and they were not restored with dental implants or bridgework and the result is the treatment plan, stabilization, and bridge work he performed and the Veteran is seeking reimbursement. Dr. M.W. stated the treatment was not elective or aesthetic, it was medically necessary to help prevent further total dental breakdown. Dr. D.L., also issued a private opinion and noted the Veteran was seen for emergency dental treatment. Additionally, the Veteran's current dentist, Dr. M.F., issued a private opinion. Her practice is formerly Dr. M.W.'s practice. She noted Dr. M.W. treated the Veteran for full upper arch reconstruction in 2009. She noted she reviewed past exams, x-rays, diagnostic molds, and conducted an examination. Dr. M.F. noted the Veteran is a complex dental patient and noted that in the 2007 x-rays, it shows severe breakdown of his front teeth and front bridge. She stated that if the bridge was not replaced and back bite not stabilized (as noted by Dr. M.W. at the time of the procedure), it would lead to the Veteran losing his teeth and compromise his ability to chew and get nutrition. As noted above, the Veteran was not provided the required dental appointments at a VA facility and as a result, he attended the follow up visits with Dr. M.W. At the Veteran's Board hearing, his attorney reported the majority of the Veteran's emergency dental treatment occurred on January 25, 2008 where he had major bridge and crown work done to stabilize his bite and prevent further breakdown. Three private dentists with a history of treating the Veteran provided private opinions supporting the contention the non-VA treatment was emergent. They Veteran advised he was on a liquid diet and in extreme pain. The Veteran also testified that at this time his role was mission critical and due to his dental issue, he was unable to be deployed until the dental work was completed. The Veteran testified he was called back into service after his non-VA emergency dental work was performed. The Veteran contends his understanding was that the non-VA emergency dental treatment occurred on January 25, 2008 and that the other episodes of care were all related to the January 2008 emergency dental treatment. As such, he contends the non-VA dental services should all be covered, as the episodes of care were a continuation of care from the initial January 2008 episode of care, all of which he seems reimbursement. The Board concludes the January 25, 2008 non-VA dental treatment was emergent. The other episodes of care may also be considered emergent, as they directly are a result of his January 2008 non-VA dental treatment. Given the initial non-VA dental visit was so dire, as evidenced by the private dental opinions, Veteran correspondence, and the Veteran's testimony, the Board finds that a prudent layperson would think the January 25, 2008 non-VA dental treatment and any subsequent treatment would also be emergent. The other element of 38 U.S.C. § 1728 requires a VA or other Federal facility to be unavailable. Here, the Veteran contends he attempted follow up care at the VA and the record documents his follow-ups. As discussed in the June 2009 Board decision and documented in his dental STR, the Veteran was not provided with a complete dental examination and all appropriate dental treatment prior to his discharge or release. As documented by the extensive correspondence between the Veteran and AOJ while he attempted to seek dental treatment from VA, the Board finds the VA was unavailable, as the Veteran was advised he was ineligible for VA dental services. With little to no response from the VA regarding scheduling the appropriate dental care, the Veteran had the emergency dental work done in January 2008, with the additional follow-up needed. The Veteran's dental issue has been complex, but as a Veteran who is permanently and totally disabled as a result of a service-connected disability, he had treatment that was rendered in a medical emergency, as supported by three private dentists, and it has been determined a VA facility was not feasibly available. Additionally, the Veteran advised some of the non-VA dental care was paid by his dental insurance. As VA payment or reimbursement is not precluded as a matter of law in cases where an appellant is seeking payment or reimbursement and has partial coverage, such as private insurance or Medicare for the medical care at issue, and all other criteria under 38 U.S.C. § 1728 have been met, the Board finds that entitlement to reimbursement or payment for non-VA dental services is warranted from November 2007 to December 2009, specifically January 25, 2008, subject to the limitations dependent on whether the Veteran remains liable for any remaining amounts owed after payment of the primary health insurer The Board notes that the findings in this decision are based on the unique facts and circumstances of this Veteran's situation and medical history. The Board makes its decision herein based on the evidence submitted by the Veteran; the Board is not making a categorical finding as to any similarly situated claimant. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Mouzakis, Associate 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.