BVA9502250 DOCKET NO. 93-08 588 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Medical Center in Bay Pines, Florida THE ISSUE Entitlement to reimbursement or payment of the cost of unauthorized medical services provided from December 21 to December 30, 1991. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. A. Caffery, Counsel INTRODUCTION The veteran served on active duty from July 1942 to October 1944. This is an appeal from a July 1992 action by the Department of Veterans Affairs (VA) Medical Center, Bay Pines, Florida, denying entitlement to reimbursement or payment of the expenses of the veteran's treatment at the Southwest Florida Regional Medical Center, Fort Myers, Florida, from December 22 to December 30, 1991. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in substance, that reimbursement or payment of the private medical expenses in question should be made by the VA since he was transferred from the Naples Community Hospital to the Southwest Florida Regional Medical Center on December 22, 1991, due to unstable angina. Immediate heart catheterization was needed, which was done on December 23, 1991. After his heart catheterization, it was found that he had severe diffuse coronary artery disease. Although the VA determined that he was stable for transfer on December 20, 1991, according to his private cardiologist, he was disabled for transfer. DECISION OF THE BOARD 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 veteran's claims files. 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 the evidence supports the veteran's claim for reimbursement or payment of the expenses of the private medical treatment in question. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the regional office. 2. The veteran has established service connection for a psychiatric condition that has been evaluated as 100 percent disabling for a number of years. 3. The veteran was admitted to the Naples Community Hospital, Naples, Florida, on December 17, 1991, for coronary artery disease with unstable angina. 4. He was transferred to the Southwest Florida Regional Medical Center, Fort Myers, Florida, on December 22, 1991. Cardiac catheterization was performed on December 23 and coronary artery bypass grafting surgery was performed on December 24. He was discharged from the hospital on December 30, 1991. 5. The veteran had not obtained prior authorization from the VA for the above periods of private hospitalization. 6. The VA has approved for payment the expenses of the veteran's private hospital treatment from December 17 to December 20, 1991. It was held that the veteran's condition was stable for transfer to a VA medical facility after that time. 7. The evidence does not establish that the veteran's condition permitted transfer from the private hospital to a VA medical center prior to December 30, 1991. CONCLUSION OF LAW The criteria for reimbursement or payment of the expenses of the veteran's treatment at Naples Community Hospital and the Southwest Florida Regional Medical Center, Fort Myers, Florida, from December 21 to December 30, 1991, have been met. 38 U.S.C.A. §§ 1728, 5107 (West 1991); 38 C.F.R. §§ 17.80, 17.80(a) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that it has found the veteran's claim to be "well grounded" within the meaning of 38 U.S.C.A. § 5107(a); effective on and after September 1, 1991. That is, the Board finds that he has presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed. The record reflects that the veteran has established service connection for a psychiatric condition that has been evaluated as 100 percent disabling for a number of years. The record further discloses that the veteran was admitted to the Naples Community Hospital, Naples, Florida, on December 17, 1991, due to coronary artery disease with unstable angina. He was transferred to the Southwest Florida Regional Medical Center, Fort Myers, Florida, on December 22 where he remained until December 30, 1991. Cardiac catheterization and coronary angiograms were performed on December 23, 1991, and four-vessel coronary bypass grafting was performed on December 24, 1991. The veteran did not have prior authorization from the VA for the foregoing periods of private hospital treatment. The originating agency has approved for payment the expenses of the veteran's private hospital treatment from December 17 to December 20, 1991. Reimbursement or payment of the remaining portion of the hospital expenses has been denied on the basis that the veteran's condition was stable for transfer purposes as of December 20, 1991, and that VA facilities were available for treatment at the originating agency, approximately 107 miles away from the private hospital utilized by the veteran. In order to be entitled to reimbursement or payment for medical expenses incurred without prior authorization from the VA, all of the following must be shown: (A) That the treatment was either: (1) For an adjudicated service-connected disability, or (2) for a nonservice-connected disability associated with and held to be aggravating an adjudicated service-connected disability, or (3) for any disability of a veteran who has a total disability permanent in nature resulting from a service-connected disability; (B) that a medical emergency existed and delay would have been hazardous to life or health; and (C) that no VA or other Federal facilities were feasibly available and an attempt to use them beforehand or obtain prior VA 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.A. § 1728; 38 C.F.R. § 17.80. Claims for payment or reimbursement of the cost of emergency hospital care or medical services not previously authorized will not be approved for any period beyond the date on which the medical emergency ended. For the purpose of payment or reimbursement of the expense of emergency hospital care or medical services not previously authorized, that emergency shall be deemed to have ended at that point when a VA physician has determined that, based on sound medical judgment, a veteran: (A) Who received emergency hospital care could have been transferred from the non-VA facility to a VA medical center for continuation of treatment for the disability, or (B) who received emergency medical services, could have reported to a VA medical center for continuation of treatment for the disability. From that point on, no additional care in a non-VA facility will be approved for payment by the VA. 38 U.S.C.A. § 17.80(a). In this particular case, the veteran was in receipt of a 100% evaluation for a service-connected psychiatric disability which was permanent in nature, and was hospitalized for an emergent condition, a heart condition. As indicated previously, the originating agency has approved for payment the expenses of the veteran's hospitalization at the Naples Community Hospital from December 17 to December 20, 1991. However, payment of the remaining expenses was denied on the basis that the veteran's condition was stable for transfer purposes on December 20, 1991, and VA medical facilities were available at the originating agency, approximately 107 miles away from the private hospital. The record reflects, however, in a February 1992 statement, Herman Spilker, M.D., indicated that he had attended the veteran during his recent hospitalization in Naples and that the veteran had been hospitalized with the occurrence of unstable angina and required urgent catheterization and thereafter urgent coronary bypass surgery. He stated that the instability of the veteran's situation made those procedures urgent and not elective. Another statement by Michael P. Metke, M.D., dated in August 1992, reflected that the veteran had been seen in consultation with another physician for unstable angina after undergoing cardiac catheterization. He stated that, because of the veteran's unstable cardiac condition and severe diffuse coronary artery disease, it was felt best to proceed directly with coronary revascularization the morning after his cardiac catheterization and avoid the risk of transportation to another facility. In view of the above statements by the veteran's private physicians and with consideration of the information set forth in the private hospital records, the Board concludes that the veteran's condition had not stabilized and he could not have been safely transferred from the private hospital to a VA medical center for continuation of treatment prior to December 30, 1991. In this regard, it is noted that, on the final summary from the Naples Community Hospital, it is indicated that, on December 22, the veteran had developed two episodes of recurrent chest pains and was transferred on an emergent basis to the coronary care unit. It was felt that he was at a high risk for rethrombosis of a significant artery and he was transferred to the Fort Myers facility on an emergent basis for catheterization. In view of the aforementioned discussion, it follows that payment or reimbursement for the cost of unauthorized medical services from December 21 to December 30, 1991, is warranted. 38 U.S.C.A. § 1728; 38 C.F.R. § 17.80(a). In arriving at its decision in this case, the Board has resolved all doubt in favor of the veteran. 38 U.S.C.A. § 5107. ORDER Entitlement to reimbursement or payment of the cost of unauthorized medical services provided from December 21 to December 30, 1991, is established. The appeal 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.