BVA9502432 DOCKET NO. 93-08 583 ) DATE ) ) On appeal from a decision by the Department of Veterans Affairs Medical Center in Indianapolis, Indiana THE ISSUE Entitlement to payment of unauthorized medical expenses incurred from June 8 to 11, 1992. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Keith W. Allen, Associate Counsel INTRODUCTION The veteran served in the National Guard from May 1964 to May 1970, which included a period of active service in August 1964 (active duty for training during which he incurred a service- connected disability). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision by the Department of Veterans Affairs (VA) Medical Center (VAMC) in Indianapolis, Indiana, which denied the veteran's claim for payment of unauthorized medical expenses incurred from June 8 to 11, 1992. The veteran was scheduled to testify at an April 1993 hearing but withdrew his request for a hearing prior to that time. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that VA should be responsible for payment of his medical expenses in question because doctors at a VA outpatient clinic, where he had been seen in May 1992, failed to adequately treat his heart condition. He claims that, had they properly treated him, he would not have had the heart attack which was treated by private sources in June 1992. He asserts that VA facilities were not feasibly available at the time in question because of his medical emergency. 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 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 the veteran has not submitted a well-grounded claim for payment of unauthorized medical expenses incurred from June 8 to 11, 1992. FINDING OF FACT The veteran has not submitted evidence of a plausible claim for payment of unauthorized medical expenses incurred from June 8 to 11, 1992. CONCLUSION OF LAW The veteran's claim, for payment of unauthorized medical expenses incurred from June 8 to 11, 1992, is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION The threshold question to be answered in this case is whether or not the veteran has submitted a well-grounded claim, meaning one which is plausible, for payment of the unauthorized medical expenses incurred from June 8 to 11, 1992. If he has not submitted a well-grounded claim, there is no duty on the VA to assist him with the claim, and the claim must be dismissed. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78 (1990). The evidence shows that the veteran's only established service- connected condition is post-traumatic degenerative disc disease of the lumbar spine, rated 40 percent. VA medical records show that, prior to the time of the medical services at issue, the veteran was known to have non-service-connected heart disease, and in May 1992 he received outpatient treatment for chest pain. On June 8, 1992 the veteran went to the office of his family doctor, T. Field, M.D., and presented symptoms which were diagnosed as a myocardial infarction (heart attack). In a subsequent note, Dr. Field commented that he had seen the veteran about five weeks earlier, told him he had coronary artery disease, and advised him to undergo additional diagnostic studies, which the veteran declined. The veteran was taken by ambulance from the doctor's office, and admitted to St. Joseph's Hospital on June 8, 1992 for treatment of the heart attack. Later that day the veteran was transferred by ambulance to Deaconess Hospital, where he remained hospitalized, undergoing treatment for the heart condition, from June 8 to 11, 1992. While at that facility, a VAMC was contacted, authorization for private care at VA expense was denied, and arrangements were made for transfer to a VAMC for further care. The veteran was so transferred on June 11, 1992. The veteran subsequently filed a claim for payment of unauthorized medical expenses incurred in connection with the private care from June 8 to 11, 1992. He argued that private treatment was received in an emergency and VA facilities were not feasibly available under the circumstances. The veteran also argued that he was improperly treated by the VA when seen as an outpatient in May 1992, and that if he had been properly treated he would not have had the heart attack which required treatment from private sources. The legal criteria governing payment of unauthorized medical expenses are listed in 38 U.S.C.A. § 1728 and 38 C.F.R. § 17.80. This law and regulation provide for payment of unauthorized medical expenses in instances where all of the following are shown: (a) The treatment rendered was either: (1) for an adjudicated service- connected disability, or (2) for a non-service-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; and (b) That a medical emergency existed of such nature that 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. There is absolutely no evidence that the veteran meets the first of the criteria, concerning a service-connected disability. He is only service-connected for a back condition (rated 40 percent), the June 1992 private treatment was for a non-service- connected heart condition, and there is neither proof nor an allegation that the non-service-connected heart condition was associated with and held to be aggravating the service-connected back condition. Under these circumstances, the claim for payment of the June 1992 unauthorized medical services is implausible and not well grounded. Parker v. Brown, 7 Vet.App. 116, 119 (1994). The Board also notes that the allegation that improper VA care led to the heart attack, resulting in the private care, is not responsive to the controlling legal authority on payment of unauthorized medical expenses, and such allegation does not state a legal claim for which relief could be granted. See Sabonis v. Brown, 6 Vet.App. 426 (1994). For these reasons, the Board must dismiss the claim as not well grounded. ORDER The claim for payment of unauthorized medical expenses incurred from June 8 to 11, 1992, is dismissed as not well grounded. L. W. TOBIN 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.