Citation Nr: 0000568 Decision Date: 01/07/00 Archive Date: 01/11/00 DOCKET NO. 91-51 690 ) DATE ) ) On appeal from the Department of Veterans Affairs Chicago-West Side Medical Center THE ISSUE Entitlement to payment or reimbursement by Department of Veterans Affairs (VA) for unauthorized private medical expenses incurred by the veteran on October 2, October 6, and November 9, 1989. (The veteran's appeal of the claims of service connection for low back and left hand disabilities, increased ratings for right knee disability and gastric ulcer disease, and entitlement to a temporary total convalescent rating under 38 C.F.R. § 4.30 following hospitalization from February 27 to March 4, 1990 is the subject of a separate decision by the Board.) REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Artur F. Korniluk, Associate Counsel INTRODUCTION The veteran had active service from August 1954 to May 1958. This matter comes to the Board of Veterans' Appeals (Board) from the VA Chicago-West Side Medical Center (MC) February 1990 decision denying payment or reimbursement of medical expenses incurred during private outpatient treatment on October 2, October 6, and November 9, 1989. In July 1992 and March 1995, this matter was remanded for additional development of the evidence. FINDINGS OF FACT 1. The veteran incurred unauthorized private medical expenses in connection with scheduled treatment and clinical studies referable to his right knee disability on October 2, October 6, and November 9, 1989. 2. At the time of October and November 1989 treatment, service connection was in effect for right knee disability, evaluated 20 percent disabling. 3. A medical emergency of such nature that delay would have been hazardous to the veteran's life or health did not exist at the time private medical treatment was rendered on October 2, October 6, and November 9, 1989. CONCLUSION OF LAW The criteria for reimbursement or payment by VA of the cost of unauthorized private medical services rendered on October 2, October 6, and November 9, 1989 have not been met. 38 U.S.C.A. §§ 1728, 5107 (West 1991); 38 C.F.R. § 17.120 (1999). 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); i.e., he has presented a claim that is plausible. Further, the Board is satisfied that all relevant facts have been properly developed subsequent to the most recent remand of the case in March 1995 (including the Medical Administration Service folder). There is no indication that there are additional records that have not been obtained which are pertinent to the veteran's claim. Thus, nothing further is required to comply with the duty to assist under 38 U.S.C.A. § 5107(a). Godwin v. Derwinski, 1 Vet. App. 419 (1991); White v. Derwinski, 1 Vet. App. 519 (1991). In this case, the veteran has not argued, nor does the evidence suggest, that prior authorization for private medical treatment in October and November 1989 was obtained. Thus, the matter for inquiry is whether the veteran is eligible for payment or reimbursement for medical services which were not previously authorized. In order for a veteran to be entitled to reimbursement or payment for medical expenses incurred without prior authorization from VA, three criteria must be met. First, the treatment received must be for an adjudicated service- connected disability or a nonservice-connected disability associated with and held to be aggravating an adjudicated service-connected disability, or the veteran must have been totally and permanently disabled due to a service-connected disability. Second, the care and services not previously authorized must be shown to have been rendered in a medical emergency of such nature that delay would have been hazardous to the veteran's life or health. Third, VA or other Federal facilities must not have been feasibly available, and an attempt to use them beforehand or to 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(a); 38 C.F.R. § 17.120 (formerly 38 C.F.R. § 17.80, re-designated in May 1996). Failure to satisfy any of the three criteria listed above precludes VA from paying unauthorized medical expenses incurred at a private facility. Hayes v. Brown, 6 Vet. App. 66, 69 (1993). The Board notes that service connection for right knee disability has been in effect since May 29, 1958, the day following the veteran's separation from active service. A 20 percent disability rating was in effect at the time of treatment subject to this appeal (October and November 1989). Thus, the first criteria for reimbursement or payment for medical expenses incurred without prior authorization from VA has been met. 38 U.S.C.A. § 1728; 38 C.F.R. § 17.120. The evidence of record demonstrates that the veteran sought outpatient medical treatment from M. Krieger, M.D., on October 2, 1989 due to increasing right knee pain, crepitus, and tenderness. Treatment on October 2, 1989 consisted of medication and issuance of a knee brace. Magnetic resonance imaging (MRI) of the knee was scheduled and performed at the MRI Center on October 6, 1989 (showing tricompartmental degenerative changes and popliteus bursitis). Dr. Krieger saw the veteran again on October 12, 1989 and treated his right knee with local and intra-articular injections. Follow-up treatment was furnished on November 9. In January 1990, Dr. Krieger indicated that the veteran was bothered significantly by right knee symptoms. He indicated that the veteran was precluded from traveling to a VA facility for treatment, and that he worked at Michael Reese Hospital and "he sees Dr. Krieger at the hospital or he can get a shuttle bus from [the hospital] to our office. . . - therefore he need not do alot of walking or traveling." At an August 1991 hearing, the veteran testified that, at or about the time in question, the severity of symptoms associated with his service-connected right knee disability necessitated urgent medical treatment. Reportedly, he sought treatment at a VA facility but nothing meaningful was done for him. He indicated that he sought treatment from Dr. Krieger in an extreme emergency situation when the severity of his right knee pain represented a "matter of life and death." Based on the foregoing, the Board finds that the weight of the evidence shows that the treatment the veteran received from Dr. Krieger (including an MRI) on October 2, October 6, and November 9, 1989 was not rendered in a medical emergency of such nature that delay would have been hazardous to the veteran's life or health. Although the evidence indicates that he may, in fact, have experienced severe right knee pain in October 1989 and prior thereto, the initial treatment by Dr. Krieger on October 2 consisted of medication and a knee brace. The MRI performed on October 6 was a scheduled, non- emergent procedure. Dr. Krieger's November 9 treatment is likewise not shown to have been rendered in a medical emergency. As clearly indicated by Dr. Krieger in January 1990, the veteran sought treatment from him (instead of from VA sources) simply because it was more convenient. Under such circumstances, the Board concludes that the treatment received by the veteran on October 2, October 6, and November 9, 1989 did not constitute a medical emergency. Thus, the second criteria for reimbursement or payment of medical expenses incurred without prior authorization from VA is not met. Inasmuch as failure to satisfy any one of the three criteria set forth above precludes VA payment of medical expenses incurred without prior authorization from VA, the veteran's appeal must be denied. 38 U.S.C.A. § 1729; 38 C.F.R. § 17.120 (1999). ORDER The claim for payment or reimbursement of unauthorized medical expenses incurred on October 2, October 6, and November 9, 1989 is denied. J. F. GOUGH Member, Board of Veterans' Appeals