Citation Nr: 0007001 Decision Date: 03/15/00 Archive Date: 03/23/00 DOCKET NO. 98-06 647 A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Pittsburgh, Pennsylvania THE ISSUE Entitlement to reimbursement for payment or reimbursement for the cost of unauthorized medical services associated with the veteran's hospitalization at Sewickley Valley Hospital in Sewickley, Pennsylvania, for the period of June 2 through June 5, 1996. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and C.M., friend of veteran ATTORNEY FOR THE BOARD C. L. Mason, Associate Counsel INTRODUCTION The veteran had active service from March 1944 to March 1946, from June 1946 to May 1949, and from July 1949 to November 1957. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 1997 determination by the Medical Administrative Service (MAS) of the Pittsburgh, Pennsylvania Department of Veterans Affairs Medical Center (VAMC). The veteran, a friend, and the veteran's representative appeared at a hearing before a three member board at the Pittsburgh VAMC in June 1998. FINDINGS OF FACT 1. The veteran is service-connected for history of herniated disc of the lumbar spine assigned a 20 percent disability evaluation, arthritis of the cervical spine with history of herniated disc assigned a 10 percent disability evaluation, simple fracture of the ribs assigned a noncompensable evaluation, and spontaneous pneumothorax assigned a noncompensable evaluation. 2. From June 2, 1996 through June 5, 1996, the veteran received private medical treatment for acute anterior wall myocardial infarction, post infarction angina, post bypass surgery, hypertension, left ventricular systolic dysfunction, and coronary artery disease. 3. Payment or reimbursement of the costs of medical services rendered by Sewickley Valley Hospital from June 2 through June 5, 1996 was not authorized by the VA and was disapproved by the VA in October 1997. 4. At the time of the veteran's hospitalization and treatment, he was not rated permanently and totally disabled due to service-connected disability, or participating in a course of vocational rehabilitation under the auspices of the VA. CONCLUSION OF LAW Payment or reimbursement is not warranted for the cost of unauthorized medical services provided to the veteran from June 2 through June 5, 1996, as an inpatient at Sewickley Valley Hospital in Sewickley, Pennsylvania. 38 U.S.C.A. §§ 1703, 1710, 1728 (West 1991 & Supp 1999); 38 C.F.R. §§ 17.52, 17.120 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran seeks VA payment of the expenses incurred in connection with a period of private hospitalization at Sewickley Valley Hospital from June 2 through June 5, 1996. Reimbursement for expenses not previously authorized permit reimbursement only under the following circumstances: (a) treatment was for (1) an adjudicated service-connected disability; (2) a nonservice-connected disability associated with and held to be aggravating an adjudicated service- connected disability; (3) any disability of a veteran who is permanently and totally disabled as a result of a service- connected disability; or (4) a veteran who is participating in a vocational rehabilitation program; and (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. 38 U.S.C.A. § 1728; 38 C.F.R. § 17.120 (1999). All three statutory requirements have to be met before reimbursement could be authorized. Malone v. Gober, 10 Vet. App. 539, 547 (1997). The record shows that service connection has been established for history of herniated disc of the lumbar spine assigned a 20 percent disability evaluation, arthritis of the cervical spine with history of herniated disc assigned a 10 percent disability evaluation, simple fracture of the ribs assigned a noncompensable evaluation, and spontaneous pneumothorax assigned a noncompensable evaluation. On June 2, 1996, the veteran was admitted to the Sewickley Valley Hospital with an acute anterior wall myocardial infarction. The hospital summary indicates that the veteran's VA physician was contacted and that the veteran was transferred to the Oakland VAMC on June 5, 1996 when a bed became available. The principal diagnosis on the discharge summary was acute myocardial wall infarction. Other diagnoses included coronary artery disease, post bypass surgery, hypertension, noninsulin dependent diabetes, arthritis of the right shoulder, appendectomy, post infarction angina, and left ventricular systolic dysfunction. The discharge summary indicates that the veteran was only treated for his heart while hospitalized at the private facility. At his June 1998 hearing, the veteran testified that his friend, the witness, called the ambulance and that transport to the Oakland VAMC was requested. The veteran and the witness further testified that the emergency medical technicians contacted the Oakland VAMC by telephone and were instructed to transport the veteran to the nearest private hospital. The argument has been made that the circumstance of the veteran's hospitalization was an emergency and that VA facilities were not available. However, the Board notes that consideration of the emergent nature of the circumstances and the availability of a VA facility are not undertaken under § 17.120 unless the veteran is found to have satisfied the requirements of § 17.120(a). Here, the veteran is service connected for history of herniated disc of the lumbar spine, cervical arthritis with history of a herniated disc of the cervical spine, fractured ribs, and spontaneous pneumothorax. These are his only service-connected disabilities. During the period of hospitalization in question he did not receive treatment for these disabilities or for disabilities associated with and held to be aggravating such disabilities. The veteran does not have a total disability permanent in nature resulting from a service-connected disability. Therefore, the veteran has not demonstrated that he meets the first criterion for payment or reimbursement of medical expenses under the provisions of § 17.120(a) in this case. As previously noted, all of the criteria must be met. Thus, the claim for payment or reimbursement of expenses in association with his private hospitalization from June 2 through June 5, 1996 is denied. In regard to whether there had been prior approval, we accept that there may have been communication between the EMS personnel and the VA and that there was communication between the private hospital and the VA. However, a statement to the effect that there is no room at a VA facility is just a statement of fact and no more. A statement that he should be diverted to a facility equipped to handle his case does not constitute prior approval or approval of treatment rendered. The United States Court of Appeals for Veterans Claims (Court) has held that the advice of a doctor to go to a non- VA hospital is not the specific type of authorization contemplated by the regulations. Malone v. Gober, 10 Vet. App. 539 (1997). Moreover, the Board notes that law and regulations state that the VA may contract with non-VA hospitals for hospital case for the treatment of a medical emergency which pose a serious threat to the life or health of a veteran receiving medical services in a VA facility until such a time as the veteran can be safely transferred. 38 U.S.C.A. § 1703(a)(3) (West 1991). However, pursuant to § 1703, a veteran must be both eligible for the contracted care and pre-authorized. Here, the veteran was not eligible for contracted care because the veteran was not "receiving" medical services in a VA facility. 38 U.S.C.A. § 1703(a)(3) (West 1991). ORDER Reimbursement or payment of the cost of unauthorized private medical services associated with the veteran's hospitalization at Sewickley Valley Hospital, Sewickley, Pennsylvania, from June 2 through June 5, 1996, is denied. H. N. SCHWARTZ Member, Board of Veterans' Appeals