BVA9504442 DOCKET NO. 93-08 962 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Medical Center in Columbia, South Carolina THE ISSUE Entitlement to reimbursement or payment for the cost of unauthorized medical treatment received on April 5, 1992 and April [redacted] 1992. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD James A. Pritchett, Associate Counsel INTRODUCTION The veteran had active service from August 1943 to January 1946. The veteran died on April [redacted] 1992. The appellant is his surviving spouse. She is presumed to be the representative of his estate for the purpose of this appeal. This matter came before the Board of Veteran's Appeals (Board) on appeal from a decision of July 1992, by the Columbia, South Carolina, Department of Veterans Affairs (VA) Medical Center, the agency of original jurisdiction (AOJ). In addition to the claim for reimbursement which is the subject of the current appeal, the appellant filed a claim for death benefits under the provisions of 38 U.S.C.A. § 1151 with the Columbia, South Carolina Regional Office (RO). Certain comments in her notice of disagreement and formal appeal appear to be relevant to that claim rather than the current certified issue. In any event, they were of record prior to the RO's denial of the 38 U.S.C.A. § 1151 claim in March 1993. There is no notice of disagreement of record on this issue and it is not for further appellate consideration at this time. The Board notes that the appellant originally applied for dependency and indemnity compensation, which was denied by a rating decision dated in March 1993. The rating decision is not clear as to whether consideration was given to the issue of pension. A claim for dependency and indemnity compensation will be construed also as a claim for death pension. Harvey v. Brown, 6 Vet.App. 390 (1994). Further clarification of this matter by the RO is indicated. CONTENTIONS OF APPELLANT ON APPEAL It is contended that the veteran incurred medical emergencies on April 5 and [redacted] 1992 and that the appellant should be paid or reimbursed for the cost of that care. 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 claims file and the file from the medical center. 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 a preponderance of the evidence is against the claim for reimbursement or payment for the cost of unauthorized private medical services rendered on April 5 and [redacted] 1992. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the AOJ. 2. At the time of the veteran's unauthorized private medical care in April 1992 service connection was not in effect for any disabilities, and no claim was pending. 3. The veteran received private medical care on April 5, 1992 for low abdominal pain and on April [redacted] 1992 for cardiac arrest. 4. Medical care received by the veteran on April 5 and [redacted] 1992 was not for an adjudicated service-connected disability or for a nonservice-connected disability associated with and held to be aggravating an adjudicated service-connected disability, and the veteran was not totally and permanently disabled as a result of service-connected disability. CONCLUSION OF LAW The requirements for entitlement to payment or reimbursement for the cost of unauthorized private medical care incurred on April 5 and [redacted] 1992, are not 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 appellant's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107. That is, she has presented a claim which is plausible, and all relevant facts have been properly developed. No further assistance to the appellant is required to comply with the duty to assist the appellant mandated by 38 U.S.C.A. § 5107. In order for the appellant to be entitled to reimbursement or payment for medical expenses incurred without prior authorization from the VA, there are three criteria, all of which must be met. The initial criterion is that the treatment received be for an adjudicated service-connected disability or for a nonservice- connected disability adjunct to and aggravating an adjudicated service-connected disability, or the veteran must have been totally and permanently disabled due to service-connected disability. It must also be shown that a medical emergency existed at the time of the unauthorized private medical care of such nature that delay would have been hazardous to the veteran's life or health. It must also be shown that a VA medical facility, or other Federal medical facility, was not feasibly available at the time of the unauthorized private medical care. 38 C.F.R. § 17.80. At the time of the unauthorized medical care in April 1992, service connection was not in effect for any disabilities. Service connection had previously been denied for alcoholism with associated liver and heart disease. In her VA Form 1-9 dated in November 1992, the appellant indicates that the veteran was treated at the Charleston, South Carolina VA Medical Center (VAMC) on April 4, 1992, and was discharged therefrom on April 5, 1992. He developed abdominal pain later on the 5th of April. She called the Charleston VAMC and was told to take the veteran to the nearest emergency room. Such medical advice, per se, does not constitute authorization for such treatment, and the appellant has not so contended. Smith v. Derwinski, 2 Vet.App. 378 (1992); cf Similies v. Brown, 6 Vet.App. 555 (1994). Clearly, there was no authorization sought or obtained. On April [redacted] 1992, the veteran experienced what was described as a seizure and was taken to Loris County Hospital, where he died. The death certificate states that the cause of death was cardiopulmonary arrest and that diabetes mellitus was a contributing factor to the veteran's death. At the time of the private medical treatment for abdominal pain on April 5, 1992, and for the seizure on April [redacted] 1992, service connection was not in effect for any disabilities and no claim for service connection for any disorder was pending. Thus, an essential legal requirement for reimbursement for unauthorized medical expenses is absent. Accordingly, the Board need not address whether a medical emergency was present or whether a VA or other Federal medical facility was available to provide the treatment in question. 38 U.S.C.A. § 1728, (West 1991); 38 C.F.R. § 17.80. The Board has carefully reviewed the entire record in this case; however, the Board does not find the evidence to be so evenly balanced that there is any doubt as to a material issue. 38 U.S.C.A. § 5107. ORDER Reimbursement or payment for the cost of unauthorized private medical services rendered on April 5 and April [redacted] 1992, is denied. ROBERT D. PHILIPP 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.