Citation Nr: 0004494 Decision Date: 02/18/00 Archive Date: 02/23/00 DOCKET NO. 94-00 825 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to reimbursement or payment for medical expenses incurred in connection with the veteran's hospitalization at a private facility from September 6 to November 13 in 1991. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The appellant ATTORNEY FOR THE BOARD A. C. Mackenzie, Associate Counsel INTRODUCTION The veteran served on active duty from January 1951 to March 1953. He died on January [redacted], 1992, and the appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. This appeal arises from a December 1992 decision letter issued by the Allen Park VA Medical Center (VAMC), which denied the appellant's claim. The Board remanded this case to the RO for further development in October 1995 and October 1998, and the case has since been returned to the Board. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of this appeal has been obtained by the RO. 2. At the time of the veteran's hospitalization from September 6 to November 13 in 1991, a total disability evaluation based upon a service-connected disability was in effect. 3. At the time of the veteran's hospitalization from September 6 to November 13 in 1991, VA medical facilities were feasibly available, and the veteran could have been safely transferred to a VA facility. CONCLUSION OF LAW The criteria for entitlement to reimbursement or payment for medical expenses incurred in connection with the veteran's hospitalization at a private facility from September 6 to November 13 in 1991 have not been met. 38 U.S.C.A. §§ 1728, 5107 (West 1991); 38 C.F.R. §§ 17.120, 17.123 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the appellant's claim is plausible and capable of substantiation and is therefore well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). The Board also finds that all relevant evidence necessary for an equitable disposition of this appeal has been obtained by the RO, and no further development is necessary in order to fulfill the VA's duty to assist the appellant with the development of facts pertinent to her claim, as set forth in 38 U.S.C.A. § 5107(a). Under certain circumstances, the VA may reimburse unauthorized medical expenses of a veteran. 38 U.S.C.A. § 1728 (West 1991); 38 C.F.R. § 17.120 (1999) (formerly 38 C.F.R. § 17.80). Parties eligible for such payment include: (1) the veteran who received the services (or his or her guardian); (2) the hospital, clinic, or community resource which provided the services; and (3) a person other than the veteran who paid for the services. 38 C.F.R. § 17.123 (1999) (formerly 38 C.F.R. § 17.182). Under 38 C.F.R. § 17.120 (1999), to the extent allowable, payment or reimbursement of the expenses of care, not previously authorized, in a private or public (or Federal) hospital not operated by the VA, or of any medical services not previously authorized, including transportation (except prosthetic appliances, similar devices, and repairs), may be paid on the basis of a claim timely filed under the following circumstances: (a) For veterans with service-connected disabilities. Care or services not previously authorized were rendered to a veteran in need of such care and services: (1) for an adjudicated service- connected disability; (2) for nonservice-connected disabilities associated with and held to be aggravating an adjudicated service-connected disability; (3) for any disability of a veteran who has a total disability permanent in nature resulting from a service- connected disability (does not apply outside the States, Territories, and possessions of the United States; the District of Columbia; and the Commonwealth of Puerto Rico); (4) for any illness, injury, or dental condition in the case of a veteran who is participating in a rehabilitation program under 38 U.S.C.A., Chapter 31, and who is medically determined to be in need of hospital care or medical services for any of the reasons enumerated in 38 C.F.R. § 17.48(j) (1999); and (b) In a medical emergency. Care and services not previously authorized were rendered in a medical emergency of such nature that delay would have been hazardous to life or health, and (c) When Federal facilities are unavailable. VA or other Federal facilities were not feasibly available, and an attempt to use them beforehand or to 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. In this case, the veteran was admitted to Seaway Hospital in Trenton, Michigan on September 6, 1991. The emergency room report indicates that the veteran was admitted with complaints of shortness of breath, difficulty breathing, and right-sided pain. The veteran was awake but did not appear alert or oriented and was unable to respond verbally. His complete blindness and history of Friedreich's ataxia, with confinement to a wheelchair, were noted. Upon examination, vital signs were noted to not be stable. The veteran was admitted on the basis of a tentative diagnosis of right lower lobe pneumonia, rule out myocardial infarction. During the hospitalization, the veteran was noted to have done well for a few days, but he then began "to show some degenerative course with respiratory distress, respiratory arrest." One of the veteran's treating physicians found that he had pneumonia of the right lower lobe, and urinary incontinence, hyperglycemia, chronic renal failure, and some dehydration were also noted. Additionally, the veteran was placed on a respirator. Chest x-rays showed bronchopneumonia of the right lung base, and a computerized tomography (CT) scan of the head revealed mild cerebral atrophy. Repeat chest x-rays revealed some diffuse infiltration of both lungs, but, by October 16, 1991, there was almost complete clearing of the infiltrate on the left, with the infiltrates on the right essentially unchanged. The veteran's hospitalization course was described as variable, but gradual and steady improvement was noted. On November 13, 1991, the veteran was transferred to the Saginaw, Michigan VAMC. The discharge summary indicates final diagnoses of diplococcal pneumonia of the right lower lobe, acute respiratory acidosis and respiratory failure, pneumococcal sepsis, Friedreich's ataxia, malnutrition, dysphagia, dehydration, pleural effusion, chronic renal failure, quadriplegia, and blindness. Following the Board's October 1995 remand, this case was referred to a VA doctor for an expert opinion as to the circumstances surrounding the hospitalization at issue in this case. The requested opinion was provided in July 1996. This doctor noted that, at the time of the admission to Seaway Hospital, a medical emergency existed, as the veteran was acutely and severely ill and had unstable vital signs. However, this same doctor found that, after initial stabilization, the veteran could have been safely transported to the nearest VA facility, which was about ten miles away. Additionally, during the hospital course, there were "many other opportunities to transfer the veteran to a VA facility." Moreover, there was no indication from the record that a request was placed to a VA facility to transfer the veteran. Similarly, there was no indication that a VA facility rejected a request for a transfer. The VA doctor noted that two nearby VA facilities (Allen Park and the Ann Arbor VAMC) could have provided the level of care that the veteran required and could have been available as early as September 6, 1991, the date of the veteran's admission to Seaway Hospital. The doctor was unable to comment as to bed availability or other administrative issues, which could have delayed a potential transfer. The Board also observes that, during her January 1997 hearing and her November 1999 Board hearing, the appellant argued that the veteran was so seriously ill at the time of his stay at Seaway Hospital that a transfer to a VA facility would not have been feasible. But see Robinette v. Brown, 8 Vet. App. 69, 77 (1995) (a lay account of a physician's statement, "filtered as it [is] through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute 'medical' evidence"); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) (a layperson cannot offer a competent opinion on a matter requiring medical expertise). In reviewing the veteran's claims file, the Board observes that the appellant noted in a November 1991 lay statement that she had not yet paid the remaining medical expenses for the hospitalization at issue, as she believed that such payment was the VA's responsibility. Regardless of whether or not the appellant has paid the outstanding medical expenses, however, the Board finds that the criteria for entitlement to reimbursement or payment for medical expenses incurred in connection with the veteran's hospitalization at a private facility from September 6 to November 13 in 1991 have not been met in this case. In this regard, the Board would point out that, at the time of the veteran's hospitalization from September 6 to November 13 in 1991, a total disability evaluation based upon a service-connected disability (the veteran's blindness) was in effect. As such, the criteria for further consideration of this claim under 38 C.F.R. § 17.120(a)(3) (1999) have been met. However, the record reflects that the veteran's treatment was unauthorized and that he indicated no desire to be transferred to a VA facility at the outset of his hospitalization. While the veteran has been shown to have been in an emergency situation at the time of his admission to Seaway Hospital on September 6, 1991, the VA doctor who reviewed the claims file noted that the veteran could have been transferred to a nearby facility on the same day and would have received the same level of care that he received at Seaway Hospital. Overall, as VA medical facilities were feasibly available and because the veteran could have been safely transferred to a VA facility at the time of his hospitalization from September 6 to November 13 in 1991, the Board concludes that the preponderance of the evidence is against the appellant's claim of entitlement to reimbursement or payment for medical expenses incurred in connection with the veteran's hospitalization at a private facility from September 6 to November 13 in 1991. In reaching this decision, the Board has considered the doctrine of reasonable doubt, as set forth in 38 U.S.C.A. § 5107(b) (West 1991). However, as the preponderance of the evidence is against the appellant's claim, this doctrine is not for application in the present case. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to reimbursement or payment for medical expenses incurred in connection with the veteran's hospitalization at a private facility from September 6 to November 13 in 1991 is denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals