Citation Nr: 0005980 Decision Date: 03/06/00 Archive Date: 03/14/00 DOCKET NO. 97-06 845A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Sepulveda THE ISSUE Entitlement to reimbursement for payment of medications purchased from a private pharmacy on December 26, 1993 and April 13, 15, 19, 20, 23, 28 and 30, 1994. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Alice A. Booher, Counsel INTRODUCTION The veteran had active service from August 1948 to August 1968. Service connection was in effect for post-traumatic stress disorder (PTSD), evaluated as 100 percent disabling, and hemorrhoids, rated as noncompensably disabled. The veteran died on March [redacted], 1996. The veteran's widow, the appellant in the current appeal, is now in receipt of Dependency and Indemnity Compensation (DIC) benefits. The appellant in this case is presumed for the purposes of standing in this case to be the veteran's lawful widow. The current appeal to the Board of Veterans' Appeals (the Board) is taken from action by the Chief, Medical Administration Service (MAS) of the Department of Veterans Affairs (VA) Medical Center (MC), in Sepulveda, California. The claim was pending at the time of the veteran's death, a timely appeal was filed, and his widow has continued to pursue it since. The Board notes that the file reflects that there are a number of instances of record in which claims were apparently filed including but not limited to for reimbursement for other periods of unauthorized care and/or prescription medications filled at non-VA facilities. It remains unclear the extent to which any or all of these have been paid and/or on which if any of the claims there remain costs unpaid for which the appellant intends to continue her pursuit of reimbursement. Specifically, the Statement of the Case (SOC) prepared in January 1996 on the current appeal, and an associated fact sheet added thereafter for clarification purposes, also initially cited additional reimbursement claims for prescription medications on March 29, June 28, and August 3- 16, 1994, and a period of hospitalization from January 1-4, 1993. It was noted in pertinent part that no claim was apparently of record for that specific period of hospitalization although there was another claim of record for a period from August 1-4, 1993 [and for which at least partial pertinent certification had been received with regard to that care at Twin Cities Community Hospital from the veteran's treating physician, KPT, M.D.]. In a VA Form 646, dated in February 1996, associated with a VA Form 9, a Substantive Appeal, filed by the veteran in February 1996, it was indicated that the veteran disagreed with all of the denied claims, and wished to have a hearing thereon. Since the veteran's death in March 1996, the appellant has filed her own VA Form 9, dated in December 1996, in which she initially indicated she wanted a personal hearing. [This was subsequently canceled as noted in a VA Form 119 of record dated in February 1997.] In the meantime, in a statement from the appellant's representative in May 1996, it was acknowledged that certain payments had been made (and requesting an accounting thereof with regard to specific pending claims). It also indicated that she was appealing on the issue of denial of reimbursement for prescription medications "covering the period December 1993 to April 1994 and the non-VA hospitalization of January 1-4, 1993", and asking for a pertinent Statement of the Case (SOC) to be prepared. Correspondence was sent to the appellant's representative by the MAS in June 1996 to the effect that an SOC had already been issued on the medication issues, and reiterating that no claim was pending on a period of care from January 1-4, 1993. The MAS letter also noted that an additional claim had been filed for a period of care from August 1-3, 1993 at the Twin Cities Hospital and that a decision had been made to grant that benefit. It was further noted that since it was determined that the veteran had been able to transfer to a VA facility after the first day, payment had been authorized for one day only. The MAS letter finally noted that when the private facility had been notified thereof, they informed VA that the payment had been received by Medicare (listed as primary caregiver) and that the copayment had been written off. Accordingly, there was no remaining balance for the veteran's August 1-4, 1993 episode of care. Furthermore, VA had contacted the San Luis Ambulance-A service and was told that they had received payment for Medicare's part of the bill on the balance due as co-payment . VA advised the ambulance service that VA would reimburse their claim for the full amount and payment was thereafter processed. The appellant, via her Congresswoman, then requested an accounting of bills paid and not paid by VA. This is of record, dated October 9, 1996, reflecting the above details, as well as reimbursement for numerous other private physicians and prescription charges not including those listed on the front page of this decision. It was also noted that claims recently filed for charges accumulated in 1990 and 1991, as listed, were untimely and remained unpaid. It thus remains unclear the status of reported requests for reimbursement for medications prescribed by private facilities on March 20, 1994; June 28, 1994; August 3-16, 1994. Accordingly, the Board would bring these matters to the attention of the VAMC as well as the Department of Veterans Affairs (VA) Regional Office (RO) in Sepulveda, California, for a review of the claims file and an accounting of what may be outstanding in the way of pending claims with due consideration for the decision rendered by the Board herein. To the extent that such other issues exist, these should be fully addressed both procedurally and substantively. FINDING OF FACT Private pharmacy's prescriptions dated December 26, 1993 and April 13, 15, 19, 20, 23, 28 and 30, 1994, were paid for in full by the veteran for his immediate needs and were not reasonably available from VA. CONCLUSION OF LAW The criteria for entitlement to reimbursement for payment of medications purchased from a private pharmacy on December 26, 1993, and April 13, 15, 19, 20, 23, 28 and 30, 1994, have been reasonably met. 38 U.S.C.A. §§ 1728, 5107 (West 1991); 38 C.F.R. § 17.120 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background The evidence in the file reflects that for a period prior to his death, the veteran had been issued two authorizations, one of which was to see his local psychologist every two weeks for one hour sessions, and another for outpatient medical care not to exceed $125 in any given month without prior approval. The veteran was authorized for reimbursement of prescription costs if they were needed "immediately" and were unavailable from a VA pharmacy. The evidence also reflects that on numerous occasions in the past, reimbursement was forthcoming for both treatment and prescriptions under circumstances similar to those herein concerned, including but not limited to certifications from the veteran's physicians and psychologist for which reimbursement was requested was unavailable from VA pharmacies and had been needed immediately. For the dates herein concerned, as shown on the front page of this decision, there are paid receipts for the veteran and/or his wife from Long's Drug Store, Inc. There is collateral information in the file to the effect that a VA facility and/or pharmacy was not near the veteran's residence, and that he had sought such medications and had been reimbursed for them on repeated prior occasions. The SOC indicates that a conference telephone call was undertaken in August 1995 involving numerous parties, and that [KPT, M.D.], the physician's office was contacted with regard to certification of the immediate need for the medication not obtainable from VA, and also noting the response from the physician's office manager that such a certification would be forthcoming as soon as possible. The veteran's treating psychologist was also contacted to assure that the veteran's well being was monitored and that he was "OK". A confirmatory letter was sent to the veteran on September 11, 1995. On October 15, 1995, the veteran's representative requested a decision on the reimbursement issue with regard to the medications for the period in December 1993 and "through" April 1994 (presumably including March as well as several dates in April 1994), as well as non-VA hospitalization from August 1-4, 1993. The subsequent history and facts are enumerated in the Introduction section above. Pertinent Legal Criteria and Analysis VA is required to furnish on an ambulatory or outpatient basis medical services for any disability of a veteran who has a service-connected disability rated at 50 percent or more. 38 U.S.C.A. § 1710 (West 1991 & Supp. 1999); 38 C.F.R. §§ 17.60, 17.60d (1995), redesignated as 38 C.F.R. § 17.93, 17.96 (1999). In this case, the veteran was 100 percent service-connected for PTSD and was clearly entitled to VA treatment of such. The veteran in this case had on occasion utilized private psychiatric care for his service-connected disability, and that private physician regularly prescribed medications to treat the veteran's disability. The veteran was issued a fee-basis card for such care as well as authorization for prescriptions under certain conditions cited above. In the past, medications he required were often not reasonably available from the VA pharmacy, and he had purchased such with his own funds from private pharmacies. Guidelines relevant to the obtainment of prescription medications are found in the M-1, Part I. Such include that prescriptions may be filled by VA pharmacies based on local formularies (Chapter 16, Section 64(b), Section 65). Specifically, Section 65.65(a) provides that VA clinics will determine such questions as to whether the prescriptions will be filled in the pharmacy; whether the veteran is authorized to fill such himself on an emergent basis; or whether one- time prescriptions are fillable on a fee-basis. Section 65.65(b)(1) sets out that VA pharmacies will be used for filling of staff and nonemergent fee-basis physicians' and dentists' prescriptions to the extent practical, consistent with the needs and best interests of patients and which can be provided more economically by the VA. This is applicable particularly to prescriptions for stabilized conditions or those of a recurring nature (such as those for chronic patients treated with the same drug from month to month) in which the patient's medication needs can be determined sufficiently in advance to provide for uninterrupted prescription services from a VA pharmacy. M1, Part I, Chapter 18, Section 76(d) provides that fee-basis prescriptions will only be filled with VA formulary medication and that any prescriptions presented to the VA pharmacy for medications which are not on the VA formulary, and for which no request to deviate from the use of the VA formulary was received, will be reviewed by the Chief, Pharmacy Service, who will then contact the private, fee- basis physician concerning substitution with a VA formulary medication. M1, Part I, Chapter 18, Section 71 provides for reimbursement where veterans have paid for medications with their own funds for prescriptions needed for prompt treatment of service-connected or other approved disabilities when such medication was not immediately available from a VA pharmacy or participating pharmacy. Legislation providing for medical treatment benefits to veterans, to include the above, contemplates that government facilities, which are especially maintained for that purpose at considerable expense, shall be used to the fullest extent possible. See 38 U.S.C.A. § 1703 (West 1991 & Supp. 1999). There are, however, regulatory criteria that permit VA to assume financial responsibility for medical expenses incurred by veterans at private facilities under certain circumstances. Thus, for example, VA reimbursements for private medical expenses may, subject to other requirements, be granted if prior authorization for the VA medical treatment in question is obtained by VA. 38 C.F.R. § 17.54 (1999). In the instant case, the facts do not show, nor does the appellant argue, that authorizations to obtain prescriptions at a non-VA facility were obtained to fall within the situation of 38 C.F.R. § 17.54. Thus, the decision herein is based upon the regulations governing reimbursement of non- authorized expenses. Generally speaking, "[n]o 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. § 17.120. Pursuant to 38 U.S.C.A. § 1703(a), when VA facilities are not able to provide "economical" hospital care or medical services, the Secretary "may" contract with non-VA facilities for such care and services, either on a group or an individual basis. 38 U.S.C.A. § 1703(a); 38 C.F.R. § 17.52 (1999). Unauthorized expenditures may be paid or reimbursed in accordance with 38 U.S.C.A. 1728; 38 C.F.R. § 17.120. Such reimbursement is available only where: (1) such care or services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health; (2) such care or services were rendered to a veteran in need thereof (A) for an adjudicated service-connected disability, (B) for a non-service-connected disability associated with and held to be aggravating a service-connected disability, (C) for any disability of a veteran who has a total disability permanent in nature from a service-connected disability, or (D) for any illness, injury, or dental condition in the case of a veteran who (i) is a participant in a vocational rehabilitation program (as defined in section 3101(9) of this title), and (ii) is medically determined to have been in need of care or treatment . . . .; and (3) [VA] or other Federal facilities were not feasibly available, and an attempt to use them beforehand would not have been reasonable, sound, wise, or practical. 38 U.S.C.A. § 1728(a). To establish entitlement to payment or reimbursement of the cost of unauthorized medical service, all of the three criteria under 38 U.S.C.A. 1728 and 38 C.F.R. § 17.120 must be satisfied. See also Malone v. Gober, 10 Vet. App. 539, 542 (emphasis added), citing Cotton v. Brown, 7 Vet. App. 325, 327 (1995); Hayes v. Brown, 6 Vet. App. 66 (1993). Here, the Board does not question that the veteran meets 38 U.S.C.A. § 1728(a)(2). There must also have been a medical emergency. The Court has defined an emergency as "a sudden, generally unexpected occurrence or set of circumstances demanding immediate action." Hennessey v. Brown, 7 Vet. App. 143, 147 (1994) (quoting Webster's New World Dictionary, 3rd College Edition 444 (1988)). On numerous prior occasions, the veteran's treating psychologist and physician have certified that the medications in question were immediately needed. In fact, when contacted as part of a conference call in August 1995, the physician's office manager, in his absence, specifically indicated that such certification would be promptly forthcoming in the case of the particular prescriptions herein concerned. And as had occurred in numerous prior instances, there is a reasonable basis for concluding that the VA pharmacy may not have had the prescribed medications available for the veteran. It is also apparent from the history in the file that it was difficult for the veteran to present himself at the VA facility due to location and expense. In addition, it is noteworthy that for the good of all concerned, certain measures had been taken by VA in coordination with his private caregivers to facilitate the most equitable and satisfactory handling of the ongoing and mandatory care for his 100 percent disabling PTSD. The disability had clearly already wrecked a considerable havoc on his ability to cope in the community, as also well documented in the file. In any event, there is no determination of record that such prescriptions were in fact reasonably and feasibly available for the veteran at VA. And as shown in numerous such occasions in the past, his acquisition of the prescriptions elsewhere was thus practical and consistent with the needs and best interests of all concerned. Accordingly, the Board finds that he met all three criteria under 38 U.S.C.A. § 1728, and the appellant's claim must be granted. In reaching its decision, the Board finds that the evidence is approximately balanced and as such, has applied resolution of the doctrine of granting the benefit of the doubt to the appellant. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. §§ 3.102, 4.3 (1999). ORDER Entitlement to reimbursement for payment of medications purchased from a private pharmacy on December 26, 1993 and April 13, 15, 19, 20, 23, 28 and 30, 1994 is established; the appeal to this extent is granted subject to the regulatory criteria relating to the payment of monetary awards. RONALD R. BOSCH Member, Board of Veterans' Appeal