BVA9501004 DOCKET NO. 93-07 851 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Medical Administration Service in Fargo, North Dakota THE ISSUE Entitlement to payment or reimbursement for the cost of unauthorized private hospitalization and medical expenses on December 8 and 9, 1991. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Milo H. Hawley, Counsel INTRODUCTION The veteran had active service from January 1974 to January 1980 and from January 1981 to November 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 1991 decision by the Department of Veterans Affairs (VA) Medical Administration Service in Fargo, North Dakota (AOJ). CONTENTIONS It is contended that treatment received by the veteran on September 8 and 9, 1991, was for his service-connected left knee disability. It is asserted that he injured his left knee on September 7, 1991, and it was locked in a bent position with tremendous pain. In his substantive appeal the veteran indicates that his intentions were to attempt to wait under Monday, September 9, 1991, and ride with his neighbor in a service organization van to the Fargo VA medical facility. However, he was informed that the Fargo VA medical facility had no orthopedic unit. Pain caused him to be up most of the night of September 7 and at 6 a.m. on Sunday morning, September 8, the veteran was unable to stand the pain any longer and obtained a ride to the emergency room of a private hospital. The attending physician, Thomas E. Miller, M.D., determined that the veteran needed emergency surgery, which was accomplished that day between 1 and 2 p.m. The veteran indicated that he checked out of the hospital at 6 p.m. on September 8, 1991. DECISION The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that payment or reimbursement of the costs of unauthorized private hospitalization and medical expenses on September 8 and 9, 1991, is warranted. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the originating agency. 2. The veteran was hospitalized at North Country Regional Hospital on September 8 and 9, 1991, after his left knee became locked in about 80 degrees flexion; arthroscopic surgery was performed on September 8. 3. As of September 8, 1991, service connection was in effect for the residuals of a left knee injury, evaluated as 20 percent disabling. 4. At the time of the veteran's hospital admission on September 8, 1991, his condition was emergent and a VA facility was not feasibly available to provide the needed treatment. CONCLUSION OF LAW The criteria for payment or reimbursement of the costs of unauthorized private hospitalization and medical services on September 8 and 9, 1991, are met. 38 U.S.C.A. §§ 1728, 5107 (West 1991); 38 C.F.R. § 17.80 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented a claim that is plausible. The Board is also satisfied that all relevant facts have been properly developed and no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). In order to obtain reimbursement or payment of the cost of private medical services obtained without prior authorization from the VA, it is necessary that the services be either for an adjudicated service-connected disability, or a nonservice- connected disability associated with and aggravating a service- connected disability or the services may be for any disability of a veteran who has a total disability permanent in nature resulting from a service-connected disability. In addition, a medical emergency must exist with delay in obtaining the services being hazardous to the veteran's life or health and no VA or Federal facilities may be feasibly available to provide the services. 38 U.S.C.A. § 1728: 38 C.F.R. § 17.80. The veteran's claim has been denied on the basis that a VA medical facility was available to provide the needed treatment. A review of the record shows that, while playing volleyball on September 7, 1991, the veteran experienced locking of the left knee. He has related that he attempted to wait until the morning of the 9th to go to a VA medical facility, but due to what he has described as "tremendous pain" he sought treatment at the private emergency room on the morning of the 8th. It has been reported that the nearest VA medical facility was 150 miles away. Given the nature and intensity of the emergent condition and distance to the nearest VA medical facility, the Board finds that a VA medical facility was not feasibly available within the meaning of the relevant law and regulation. Resolving all doubt in the veteran's favor, payment or reimbursement of the costs of the hospitalization and associated medical expenses in question is in order. 38 U.S.C.A. §§ 1728, 5107; 38 C.F.R. § 17.80. ORDER Payment or reimbursement of the costs of unauthorized private hospitalization and medical expenses on September 8 and 9, 1991, is granted. WAYNE M. BRAEUER Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.