Citation Nr: 0004545 Decision Date: 02/22/00 Archive Date: 02/28/00 DOCKET NO. 96-08 865 A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Bay Pines, Florida THE ISSUE Entitlement to reimbursement for payment or reimbursement for the cost of unauthorized medical services associated with the veteran's unauthorized private hospitalization at Citrus Memorial Hospital, Inverness, Florida, for the period of September 28, 1995 to October 3, 1995. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. L. Mason, Associate Counsel INTRODUCTION The veteran served on active duty from July 1962 to July 1965. This case comes the Board of Veterans' Appeals (Board) on appeal from an October 1995 determination by the Medical Administrative Service (MAS). The veteran appeared at a hearing in September 1996. The veteran requested and was scheduled for a Travel Board hearing before a Member of the Board at the RO in March 1999, but he failed to report. The Board observes that the records indicate that the veteran was represented by the American Legion. In March 1998, the veteran submitted a VA Form 21-22, appointing the Veterans of Foreign Wars as his representative; thus revoking the power of attorney for the American Legion. Thereafter, the Veterans of Foreign Wars revoked the VA Form 21-22 in September 1999. In a December 1999 letter, the Board contacted the veteran and provided him the opportunity to appoint another representative. He was informed that if he did not respond, he would be unrepresented. The veteran was given 30 days to respond. The veteran did not respond and the case was sent for review. FINDINGS OF FACT 1. From September 28, 1995 to October 3, 1995, the veteran received private medical treatment for acute myocardial infarction, status post coronary artery bypass graft, hypertension, and coronary atherosclerotic heart disease. 2. Payment or reimbursement of the costs of medical services rendered by Citrus Memorial Hospital from September 28 to October 3, 1995 was not authorized by the VA and was disapproved by the VA in October 1995. 3. At the time of the veteran's hospitalization and treatment, he was not service-connected for any disability, 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 September 28, 1995 to October 3, 1995, as an inpatient at Citrus Memorial Hospital in Inverness, Florida. 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 Board notes that the pertinent regulation sections pertinent to this case were renumbered in 1996, i.e., 38 C.F.R.§ 17.80 set forth in the November 1995 statement of the case is now numbered 38 C.F.R. § 17.120. No substantive changes were made in the regulations at the time of the renumbering. The VAMC apprised the veteran of this renumbering in a Supplemental Statement of the case. At his September 1996 hearing, the veteran testified that a friend contacted the veteran's VA physician at Gainesville VAMC by telephone and that the VA physician stated that the veteran should go to a private facility. However, the veteran further testified that when he returned for treatment at the Gainesville VAMC, his physician denied receiving such a phone call. The veteran contends that the VA physician authorized the private treatment. The law and regulations state that prior authorization is required for private hospitalization at VA expense. The Board notes that 38 C.F.R. § 17.54 states that in emergency cases, prior authorization will include telephone calls to the VA within 72 hours of the veteran's admission. In the instant case, although the veteran contends that his VA physician instructed him to go to a private facility, the Bay Pines VAMC, after being contacted within 24 hours of the veteran's private hospitalization, denied authorization. Moreover, the veteran did not submit any documentation in support of his claim that his VA physician instructed him to go to the private hospital. The veteran's private hospitalization was unauthorized. 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). The Court has observed that given the use of Congress of the conjunctive "and" in the statute, all three statutory requirements would have to be met before reimbursement could be authorized. Malone v. Gober, 10 Vet. App. 539, 547 (1997). There is no evidence that at the time of the veteran's treatment, he was service- connected for any disability, was permanently and totally disabled as a result of a service- connected disability, or was participating in a vocational rehabilitation program. Private medical records show that the veteran was admitted to Citrus Memorial Hospital on September 28, 1995, with chest pain, status post recent coronary artery bypass graft on September 19, 1995 at VA facility. During the course of the hospitalization, medical evaluation indicated that he had an acute myocardial infarction. The veteran underwent intravenous heparin therapy, nitroglycerin drip and provided analgesics. A consultation report and medical notations, dated September 29, 1995, indicate that transfer of the veteran to VAMC in Gainesville, Florida, which was approximately 70 miles away, was possible; however, veteran refused to go to Gainesville VAMC. The veteran requested transfer to VAMC in Mountain Home, Tennessee. Mountain Home VAMC was contacted and agreed, but indicated VA would not pay transportation costs for transfer. The veteran's physician stated that veteran was in no condition to make a trip of that magnitude at that time. The veteran was discharged on October 3, 1995 in stable condition. A VA Report of Contact form indicates that a representative from Citrus Memorial Hospital contacted the VAMC on September 29, 1995 to report the veteran's hospitalization. An October 2, 1995 notation on this form indicates that it was determined that the veteran did not have any service- connected disabilities, and thus private hospital treatment was not authorized. The veteran maintains that emergent conditions required that he seek care at a private facility, as the nearest VA facility is over 70 miles away. While this may be true, 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). As there is no evidence to show that that veteran meets any of these criteria, the claim for payment or reimbursement of expenses in association with his private hospitalization from September 28 to October 3, 1995, is denied. ORDER Reimbursement or payment of the cost of unauthorized private medical services associated with the veteran's hospitalization at Citrus Memorial Hospital, Inverness, Florida, from September 28, 1995 to October 3, 1995, is denied. H. N. SCHWARTZ Member, Board of Veterans' Appeals