Citation Nr: 0002276 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 97-03 815A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred at Columbia Clearwater Memorial Hospital from May 8, 1996, to May 13, 1996. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The veteran served on active duty from November 1966 to November 1972. This case comes to the Board of Veterans' Appeals (Board) on appeal of a May 1996 decision of the Department of Veterans Affairs (VA) Medical Center in Bay Pines, Florida (VAMC). FINDING OF FACT The veteran has not alleged that he has met the three elements necessary for payment or reimbursement of unauthorized medical expenses incurred while hospitalized at Columbia Clearwater Memorial Hospital from May 8, 1996, to May 13, 1996. CONCLUSION OF LAW The veteran has not submitted evidence of a well-grounded claim regarding payment or reimbursement of unauthorized medical expenses incurred in connection with a period of hospitalization at Columbia Clearwater Memorial Hospital from May 8, 1996, to May 13, 1996. 38 U.S.C.A. §§ 1728, 5107 (West 1991); 38 C.F.R. § 17.120 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The threshold question to be answered concerning this issue is whether or not the veteran has presented evidence of a well-grounded claim; that is, one which is plausible, meritorious on its own, or capable of substantiation. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). In the absence of evidence of a well-grounded claim, there is no duty to assist the veteran in developing the pertinent facts and the claim must fail. Epps v. Gober, 126 F.3d 1464, 1467 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 2348 (1998). Applicable regulatory provisions provide that, for the purpose of payment or reimbursement of the expenses of hospital care or medical services not previously authorized, a person must meet all the criteria of 38 U.S.C.A. § 1728 and 38 C.F.R. § 17.120. These provisions require in pertinent part as follows: (a) the care or services not previously authorized at the private medical facility must, initially, be rendered for an adjudicated service-connected disability, or for nonservice-connected disabilities associated with and held to be aggravating an adjudicated service-connected disability, or for any disability of a veteran with a total and permanent service-connected disability; and (b) there was a medical emergency, where delay would have been hazardous to the life or health of the veteran, and (c) Federal facilities were not feasibly available. See 38 C.F.R. § 17.120 (1999) (formerly 38 C.F.R. § 17.80) (emphasis added). No reimbursement or payment of services not previously authorized will be made when such treatment was procured through private sources in preference to available Government facilities. 38 C.F.R. § 17.130 (1999). While certain of the laws and regulations applicable in the present case, and as described above, have been amended and/or renumbered during the pendency of the present appeal, a careful review of these changes reveals no substantive difference in the application of the recently superseded and now adopted laws and regulations as applicable in the present case. Accordingly, there is no version of either law or regulation which is more favorable to the veteran in accordance with the United States Court of Appeals for Veterans Claims (formerly the U.S. Court of Veterans Appeals) (Court's) decision in Karnas v. Derwinski, 1 Vet. App. 308 (1991). The new regulations were considered in an April 1998 supplemental statement of the case. Where an appellant does not, at least, allege all three elements for payment or reimbursement of unauthorized medical expenses, the claim is not well grounded. Parker v. Brown, 7 Vet. App. 116 (1994). The medical records show that the veteran was hospitalized at the Bay Pines VAMC in April and May 1996 for treatment of a staghorn calculi of the left kidney. He underwent, among other procedures, a left nephrostomy tube placement and left occlusion balloon ureteral stent. He was discharged on May 6, 1996, in stable condition. However, in a letter dated in September 1996, Roger D. Copenhaver, Jr. M.D., stated that the veteran presented to the Emergency Department of Columbia Clearwater Community Hospital on May 8, 1996, with a chief complaint of blood in his urine. He evaluated the veteran and contacted VA. He was reportedly told to admit the veteran and transfer him the day after he was stable. A report of contact indicates that the Bay Pines VAMC received a telephone inquiry from Columbia Clearwater Community Hospital on May 9, 1996, at 1:22 with an admitting diagnosis of gross upper gastrointestinal bleed, hematuria. The hospital was advised that VA could not accept responsibility for payment since the veteran was not service connected for the condition. Bed space was available at the VAMC on May 9, 1996; however, the emergency room physician stated that the veteran was not stable for transfer. On May 10, 1996, the Bay Pines VAMC received a phone call indicating that the veteran was stable for transfer and a bed was requested. A bed was available for May 13, 1996, and the veteran was transferred on that date. A hospital summary shows that the veteran was admitted to the Bay Pines VAMC on May 13, 1996, where additional treatment, including the removal of the left nephrostomy tube was performed. At a personal hearing in January 1997, the veteran and his spouse testified that the veteran had been taken to Clearwater Hospital on May 8, 1996, due to uncontrolled blood in his urine. They stated that they had asked to be transported to the VAMC by ambulance, but that despite this they were transferred to the private facility. They stated that while waiting in the emergency room of the private facility, they had repeatedly tried to contact the VAMC for transfer, but that the VAMC was not responsive and they could not wait any longer to admit the veteran. They assert that, had the VAMC responded in a timely manner, the veteran would never have been admitted to Clearwater Hospital where he incurred the significant medical bill for which he seeks payment. The veteran felt that he was out on a pass from the VAMC, as his VA doctor told him to return if there were any complications and a bed was allegedly left open for him. In the instant case, the veteran has contended that an emergency existed and, by implication, has asserted that VA facilities were not available. However, neither he nor his representative have alleged that he has met the first regulatory element for the payment or reimbursement of these expenses, that a service-connected disability is involved in the treatment that he received. Service connection is not in effect for any disability and the veteran has not contended that one should be. Under these circumstances, the veteran has not made an "ipse dixit averment" and the claim is not plausible and must be denied. Parker v. Brown, 7 Vet. App. 116 (1994). Accordingly, it is irrelevant and unnecessary to determine whether a medical emergency existed or whether Federal facilities were feasibly available. The evidence reflects that the veteran does not meet all of the criteria for payment or reimbursement of unauthorized medical expenses. See Zimick v. West, 11 Vet. App. 45 (1998) (nonservice-connected veteran's claim for reimbursement of private medical expenses is denied, as he did not meet the statutory criteria). The Court has observed that given the use by 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, 542 (1997), citing Cotton v. Brown, 7 Vet. App. 325, 327 (1995); Hayes, 6 Vet. App. 66 (1993); H.R. Rep. No. 93-368, at 9 (July 10, 1973) ("[The proposed provision a]uthorizes reimbursement of certain veterans who have service-connected disabilities, under limited circumstances, for reasonable value of hospital care or medical services . . . from sources other than the VA. Eligible veterans are those receiving treatment for a service- connected disability. . . . Services must be rendered in a medical emergency and VA or other Federal facilities must not be feasibly available."). Further, it is neither asserted nor shown that the inpatient hospital care provided the veteran at Clearwater Hospital from May 8, to May 13, 1996, was authorized by VA. See 38 C.F.R. § 17.52(a)(1)(i) (formerly 38 C.F.R. § 17.50b(a)(1)(i)) ("When [certain requirements are met], VA may contract with non-VA facilities for care . . . [subject to other requirements] for . . . [h]ospital care or medical services to a veteran for the treatment of . . . [a] service-connected disability."). In addition to not meeting the category that would have allowed VA to contract for his care if it were for the treatment of "a service-connected disability", the veteran's situation did not fall into any of the other categories of the regulation which would have permitted VA to contract for hospital care. 38 C.F.R. §§ 17.52, 17.53 (1999). Although where claims are not well grounded VA does not have a statutory duty to assist a claimant in developing facts pertinent to his claim, VA may be obligated under 38 U.S.C.A. § 5103(a) to advise a claimant of evidence needed to complete his application. This obligation depends upon the particular facts of the case and the extent to which the Secretary of the Department of Veterans Affairs has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69 (1995). In this case, the RO fulfilled its obligation under section 5103(a) in the Statement of the Case in which the appellant was informed of the reasons of the denial of his claim. There is no indication of record that there is evidence pertinent to this case that is necessary for an equitable adjudication. ORDER The claim for payment or reimbursement of unauthorized medical expenses incurred in connection with a period of hospitalization at Columbia Clearwater Memorial Hospital from May 8, 1996, to May 13, 1996, is denied. P.M. DILORENZO Acting Member, Board of Veterans' Appeals