BVA9502525 DOCKET NO. 91-46 843 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Medical Center, Phoenix, Arizona THE ISSUE Entitlement to reimbursement or payment for the cost of prescription medication and syringes obtained from private pharmacies without prior authorization, during the period from April 29, 1988, through November 9, 1988. REPRESENTATION Appellant represented by: Alake Johnson-Ford, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Hilary L. Goodman, Counsel INTRODUCTION The veteran had active service from June 1966 to January 1970. The Board of Veterans' Appeals (Board), in a decision issued on November 17, 1992, found that the criteria for reimbursement or payment for the cost of prescription medication obtained from private pharmacies during 1988 without prior authorization from the Department of Veterans Affairs (VA) had not been met. This decision was appealed to the Court of Veterans Appeals (Court). In a memorandum decision dated October 21, 1994, the Court vacated the Board's decision as to whether the veteran was entitled to reimbursement or payment for the cost of prescription medication and syringes obtained from private pharmacies without prior authorization, during the period from April 29, 1988, through November 9, 1988, and remanded to the Board for additional development. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that, during the period from April 1988 through November 1988, the VA Medical Center Pharmacy, on several occasions, mailed him incorrect or partial orders of medication and syringes for treatment of his service-connected disability. He asserts that, several times, the medication and syringes were sent to the wrong address and the VA Pharmacy would not reissue the medication and syringes until the first package had been returned. He further asserts that, on several occasions, the Pharmacy did not send him the medication or syringes because of a shortage. He further contends that he attempted to obtain the medication by traveling to the VA Medical Center but was refused. He avers that, without his medication, he experiences acute pain followed by nausea and vomiting and rapidly progressing into life-threatening anaphylactic shock. He emphasizes that any shortage of his medication represents a life-threatening situation and requests reimbursement or payment for the cost of prescription medication and syringes obtained from private pharmacies without prior authorization, during the period from April 29, 1988, through November 9, 1988. 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 record supports the veteran's claim for reimbursement or payment for the cost of prescription medication and syringes obtained from private pharmacies without prior authorization, during the period from April 29, 1988, through November 9, 1988. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the originating agency. 2. Service connection is in effect for migraine headaches, evaluated as 50 percent disabling, and a total rating based on individual unemployability has been in effect since November 1983. 3. Treatment for his migraine headaches during the period from April 29, 1988, through November 9, 1988, included Stadol (butorphanol) and both the medication and syringes were issued by the VA Medical Center Pharmacy. 4. The purchase of prescription medication and syringes from private pharmacies without prior authorization, during the period from April 29, 1988, through November 9, 1988, was necessitated by medical emergency; a VA or other Federal medical facility was not feasibly available. CONCLUSION OF LAW The criteria for reimbursement or payment for the cost of prescription medication and syringes obtained from private pharmacies without prior authorization, during the period from April 29, 1988, through November 9, 1988, have been met. 38 U.S.C.A. §§ 1728, 5107 (West 1991); 38 C.F.R. § 17.80 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds that the veteran's claim for reimbursement or payment for the cost of prescription medication and syringes obtained from private pharmacies without prior authorization, during the period from April 29, 1988, through November 9, 1988, is "well grounded" within the meaning of 38 U.S.C.A. §§ 5107(a). That is, he has presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). For the veteran to establish entitlement to reimbursement or payment for the cost of prescription medication and syringes obtained from private pharmacies without prior authorization, during the period from April 29, 1988, through November 9, 1988, all of the three criteria under 38 U.S.C.A. § 1728 and 38 C.F.R. § 17.80 must be satisfied. Not only must treatment be for an adjudicated service-connected disability or for a nonservice- connected disability associated with and held to be aggravating an adjudicated service-connected disability, but it must be shown that a medical emergency existed with delay being hazardous to life or health, and that a VA or other Federal facility was not feasibly available to provide the necessary treatment. The current record reflects that during the period in question, April 29, 1988, through November 9, 1988, the intractable pain caused by the veteran's service-connected disability, migraine headaches, was being treated with medications which included injections of Stadol. While the VA Pharmacy was the veteran's primary source for the Stadol and syringes, the veteran has contended that, during this period, there were times when only partial orders of the medication and syringes were provided and, at other times, his medication and syringes were either late in arriving because they were initially sent to the wrong address or were not sent at all because of a shortage. There are copies of shortage slips which were apparently sent to the veteran by the VA Pharmacy which are dated subsequent to the period in question as well as letters from the VA Pharmacy dated in February 1990 which acknowledge past difficulties in providing the veteran with his medication in a timely fashion. These do not confirm the veteran's specific assertions relating to the period from April 29, 1988, through November 9, 1988. What the record does demonstrate is that, during the period from April 29, 1988, through November 9, 1988, the amount of Stadol used by the veteran on a daily basis was more than had been prescribed. A VA Hospital record reflects that the veteran was admitted in September 1988 as he had developed an increasing use of Stadol. A VA Narcotic Review Committee, in January 1989, indicated that the prescription was for 2 cc. every four hours as necessary with a maximum of 12 cc. per day; it was noted that the veteran was averaging 17 cc. per day. It was indicated that this was not significantly less than in May 1988. It was also noted that there was no indication that the Pharmacy was ever out of Stadol, and that the veteran was supplementing supplies obtained from the VA. Whether or not the veteran's supply of Stadol and syringes ran short because of the shortcomings on the part of the VA Pharmacy, his supplies from the VA were insufficient as his daily dosage exceeded the prescribed amount. The critical factor is not who was at fault for this shortage of medication and syringes, but the impact of the shortage. The VA physician who prescribed the veteran's medication, in a January 1989 statement, described the veteran's disability as intractable migraine with incapacitating headaches most days, requiring high doses of medication. A private physician, Robert Williams, M.D., in an October 1989 statement, related that, if the veteran were forced to travel to the VA after running out of medication, it could be lethal, given the rapid progression of symptoms. The physician indicated that he had seen the veteran in life-threatening emergencies and that it was imperative that he receive treatment immediately for his intractable pain. The Board finds that, given the nature of the veteran's condition, his insufficient supply of Stadol and syringes was hazardous to his health. As it was indicated in the record that travel to a VA facility would have been lethal after his supply ran out, for all intents and purposes a VA or other Federal medical facility was not available to provide the needed treatment. Therefore, payment or reimbursement for the cost of prescription medication and syringes obtained from private pharmacies without prior authorization, during the period from April 29, 1988, through November 9, 1988, is in order. 38 U.S.C.A. § 1728; 38 C.F.R. § 17.80. The benefit of the doubt has been resolved in the veteran's favor. 38 U.S.C.A. § 5107. ORDER Entitlement to reimbursement or payment for the cost of prescription medication and syringes obtained from private pharmacies without prior authorization, during the period from April 29, 1988, through November 9, 1988, 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.