Citation Nr: 0005079 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 97-29 208 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Medical Center (MC) in Spokane, Washington THE ISSUE Entitlement to payment of unauthorized medical expenses resulting from private medical care received on July 8, 1996. ATTORNEY FOR THE BOARD C. Crawford, Counsel INTRODUCTION The veteran had active service from September 1966 to September 1969. This appeal arises from August and November 1996 letters, in which the VAMC denied entitlement to reimbursement of unauthorized medical expenses incurred in July 1996. In May 1998 and May 1999, the Board of Veterans' Appeals (Board) remanded the veteran's claim for due process considerations. The matter has been returned for appellate review. In November 1994 the veteran stated that he wanted to file a claim of service connection for his teeth, and in May 1997 he stated that his PTSD and skin disabilities had worsened. Given the veteran's statements, it appears as though he wants to pursue service connection and increased rating claims. The matters are referred to the RO for any development deemed appropriate. In April 1997, the veteran appointed the Disabled American Veterans (DAV) service organization as his representative. By a December 1999 letter, however, the veteran stated that he revoked DAV's representation in July 1997. In that same letter the veteran also indicated that he desired no further delays in the processing of his claim; he wanted everything sent to the Board. It is noted that in spite of the veteran's December 1999 statement, DAV submitted an Informal Hearing Presentation on the veteran's behalf. Nonetheless, the Board finds that the veteran has effectively revoked DAV's power of attorney, that the veteran has had ample opportunity to submit any additional argument or evidence in support of his claim, and to appoint other representation, if desired. The veteran's case was remanded in May 1998 and May 1999 for due process considerations. As such, no additional development in this regard is warranted. FINDINGS OF FACT 1. Service connection is in effect for PTSD, rated at 70 percent; tinea pedis, manus, unguium, and barbae, rated at 10 percent; post traumatic headaches, status post a head injury; and shell fragment scars of the left elbow (with retained fragment), right knee and hip, rated at zero percent. The veteran is in receipt of a total rating based on individual unemployability. 2. In July 1996, the veteran underwent an excision nodule of the right posterior neck via R.G.N., M.D. and Pathology Associates. 3. The care and services were not rendered in a medical emergency of such nature that delay would have been hazardous to the life or health of the veteran and other VA facilities were feasibly available. The veteran did not attempt to use them and obtaining prior VA authorization for the services would not have been unreasonable, unsound, unwise, or impracticable. Also, the treatment had not been or would not have been refused. CONCLUSION OF LAW The veteran is not entitled to payment of unauthorized medical expenses resulting from private medical care received on July 8, 1996. 38 U.S.C.A. § 1728 (West 1991); 38 C.F.R. § 17.120 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran argues that in July 1996 he was treated for a disorder that in his mind was related to Agent Orange exposure. The veteran stated that he addressed the matter with a VA medical examiner at the Spokane MC and the doctor chose "to ignore [his] concerns by giving [him] a subjective diagnosis and [telling] him not to worry." The veteran stated he could not sleep without knowing if the disorder was related to Agent Orange. He was rated at 100 percent and felt that the lump of his neck needed to be checked for his piece of mind. Because the Spokane VAMC would not address the problem and put him at ease, he chose to ask VA to pay for the procedure. VA law and regulation provides 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 for veterans where such care and services were rendered for any disability of a veteran who has a total disability permanent in nature resulting from a service-connected disability, see 38 U.S.C.A. § 1728(a)(2)(C); 38 C.F.R. § 17.120(a)(3), and such care and services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health, and VA or other Federal facilities were not feasibly available, and an attempt to use them beforehand or 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. 38 U.S.C.A. § 1728(a)(1), (b); 38 C.F.R. § 17.120(b), (c). In this case, the requisite statutory requirements have not been met; thus, authorization for reimbursement of VA benefits is not warranted. See 38 U.S.C.A. § 1728; Cotton v. Brown, 7 Vet. App. 325 (1995). The relevant evidence consists of an October 1994 rating action granting entitlement to a total rating for individual unemployability effective January 28, 1991; July 1996 Health Insurance Claims from R.G.N., M.D., and Pathology Associates and an August 1996 medical record showing that in July 1996 the veteran underwent a biopsy or excision of a nodule of the right posterior neck without pathology; and VA outpatient treatment reports dated from October 1995 to April 1997, which make no complaints of or findings associated with an enlargement of the right neck. In this case, the Board acknowledges that entitlement to a total rating based on individual unemployability is in effect. Nonetheless, the Board finds that the criteria for payment or reimbursement of the expenses incurred by R.G.N., M.D., and Pathology Associates on July 8, 1996, have not been met. Neither the record nor the veteran's assertions presented on appeal demonstrate that services rendered on July 8, 1996, were such a nature that delay would have been hazardous to the life and health of the veteran and that VA or other federal facilities were not feasibly available. There is no evidence of record indicating that the veteran required immediate emergency treatment. On notice of disagreement in May 1997 and substantive appeal in June 1997, the veteran stated that he sought treatment in order to obtain "peace of mind," and neither the evidence or the veteran's statements indicate that the lymph node enlargement caused discomfort or impairment. As previously stated, VA outpatient treatment reports do not reference the disorder. The record also does not show that the VAMC facility at Spokane or the veteran's fee-basis dermatologist were not feasibly available. Nor does it show that an attempt to use them beforehand or obtain prior VA authorization for the services required would have been unreasonable, unsound, unwise, or impracticable, or that treatment had been or would have been refused. As previously noted, service connection for a skin disorder is in effect so the evidence shows that the veteran could have received treatment from a VA dermatologist. Also, there is absolutely no evidence of record showing that the VAMC was not feasibly available to the veteran, i.e., the VA facility at Spokane was to far in distance to travel or the nature of the treatment involved made it necessary or economical to use public or private facilities. On the contrary, the record shows that throughout the years, the veteran has received treatment at the VA Spokane MC. The record also does not show that the veteran made any attempt to obtain VA authorization prior to treatment or that obtaining prior authorization would have been unreasonable and impracticable. Again, the veteran's outpatient treatment reports are completely devoid of any reference to the enlarged lymph node, and, by statements noted on substantive appeal in June 1997, the veteran admitted that he chose to ask VA to pay for the procedure rather than seek treatment at a VA facility. The evidence also does not show that the veteran was refused any treatment by a VA examiner or VA facility. Instead, on substantive appeal the veteran acknowledged that he addressed the matter with Dr. P. at the Spokane VAMC, and the doctor gave him a subjective diagnosis and told him not to worry. Admittedly the veteran alleges that the doctor chose to ignore his concerns by giving him that subjective diagnosis and advising him not to worry. Despite the foregoing, the requisite criteria are not met. Cotton, supra. At this time, the Board acknowledges that medical reports from R.G.N., M.D., and Pathology Associates are not of record. However, in spite of the foregoing, no additional development is warranted. In this case the Board emphasizes that the veteran does not assert that he received the excision of the lymph node because the disorder was of such a nature that delay would have been hazardous to the life and his health. Throughout the pendency of this appeal, the veteran has consistently maintained that he underwent the procedure for "peace of mind." It is also noted that throughout the pendency of this appeal, the veteran has been apprised of the evidence necessary to substantiate his claim. A statement of the case was issued in May 1997 and a supplemental statement of the case was issued in November 1998. As such, the Board finds that any additional development with regard to this matter would be futile. The requisite criteria for payment of or reimbursement for unauthorized medical expenses incurred on July 8, 1996, by R.G.N., M.D., and Pathology Associates have not been met. The veteran's appeal is denied. ORDER Entitlement to payment or reimbursement expenses for unauthorized medical services rendered on July 8, 1996, is denied. V. L. Jordan Member, Board of Veterans' Appeals