BVA9501664 DOCKET NO. 90-19 460 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Medical Center in Milwaukee, Wisconsin THE ISSUE Entitlement to payment or reimbursement for the cost of unauthorized medical services from April to August 1990. (The issues of entitlement to service connection for a right shoulder disorder; an increased evaluation for cervical strain; and an extension of a temporary total convalescence evaluation beyond December 31, 1990, are the subject of a separate decision of the Board.) REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL The veteran INTRODUCTION The veteran served on active duty from September 1974 to June 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 1990 and July 1991 decisions by the Medical Administration Service of the Department of Veterans Affairs (VA) Medical Center in Milwaukee, Wisconsin. CONTENTIONS OF APPELLANT ON APPEAL The veteran in effect contends that the inpatient and outpatient services he received at Milwaukee County Medical Complex from April to August 1990 were authorized by the VA. He maintains that he was referred for these medical services by VA physicians, and that VA facilities were not feasibly available to provide these services. He adds that VA physicians did not properly diagnose his condition, and that VA physicians acquiesced to the surgery he received at the private facility. 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 veteran's claims file. 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 payment or reimbursement of the cost of certain unauthorized medical services obtained in April and May 1990 is warranted and that the preponderance of the evidence is against the veteran's claim for payment or reimbursement of the cost of additional unauthorized medical services obtained from May to August 1990. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran was provided in- and outpatient treatment for a cervical spine condition by Kevin P. Black, M.D., and Howard S. An, M.D., at Milwaukee County Medical Complex from April to August 1990. 3. At that time, service connection was in effect for cervical strain, assigned a schedular evaluation of 40 percent. 4. Evaluations and associated diagnostic studies ordered by Dr. Black in April and May 1990 were not authorized. 5. The in- and outpatient care, including the surgical procedure performed in August 1990, initiated by Dr. An from May to August 1990, was not authorized. 6. The veteran's cervical spine condition at the time of the treatment he received from May to August 1990 at Milwaukee County Medical Complex was not emergent. 7. VA medical facilities were available to provide the necessary care. CONCLUSION OF LAW 1. Payment or reimbursement of the cost of unauthorized medical services received by the veteran at Milwaukee County Medical Complex from Kevin P. Black, M.D., in April and May 1990, is warranted. 38 U.S.C.A. §§ 1728, 5107 (West 1991); 38 C.F.R. § 17.80 (1993). 2. Payment or reimbursement of the cost of unauthorized medical services received by the veteran at Milwaukee County Medical Complex from Howard S. An, M.D., from May to August 1990 is not warranted. 38 U.S.C.A. §§ 1728, 5107; 38 C.F.R. § 17.80. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim that is plausible. The Board is also satisfied that all relevant facts have been properly developed, and no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). The veteran essentially has contended that the treatment he received for his service-connected cervical spine disability at Milwaukee County Medical Complex from April to August 1990 was authorized by the VA. At a personal hearing at the Milwaukee, Wisconsin, VA Medical Center in August 1992, he testified that a VA physician had referred him to, and made an appointment for him with, Dr. Black at Milwaukee County Medical Center in 1990. Dr. Black had referred him to Dr. An, who was a cervical spine specialist. VA physicians said that Dr. An was one of the best in the country and deferred to his superior expertise. The VA physicians said that it would be in his best interest to go to see Dr. An. Dr. An had performed surgery at Milwaukee County Medical Complex because he did not have operating privileges at the VA Medical Center. The veteran went on to say that he believed that the surgery performed at Milwaukee County Medical Complex was authorized. VA clinical records reveal that in January 1990 the veteran was denied a fee-basis identification card on the basis that VA medical facilities were available to provide the necessary treatment. It was noted that the veteran resided in Milwaukee, and that comparative costs had been considered. The veteran was evaluated by Dr. Black at Milwaukee County Medical Complex on April 2, 1990. It was noted that the veteran had an extremely complex history of neck and shoulder problems. On April 25, 1990, the veteran returned for a followup consultation. Dr. Black noted that the veteran's complaints were coming from many different sources, and that is was important to proceed slowly and with caution. The veteran returned on May 7, 1990, following magnetic resonance imaging. His condition was described as unchanged. The veteran was advised to go home and to return on an as needed basis. In a letter dated July 27, 1990, Dr. An, Director of Reconstructive Spinal Surgery, Department of Orthopaedic Surgery, The Medical College of Wisconsin, remarked that he had initially seen the veteran on May 18, 1990, as a consultation to Dr. Kevin Black. It was his impression that, because of persistent neck pain and arm pain due to cervical instability and a herniated disc, the veteran required surgery. Dr. An felt that the surgery should be done at the Milwaukee County Medical Complex because special equipment was needed, and that a team of nurses and personnel familiar with this procedure were available. Another point was that Dr. An did not have a formal privilege at the Veterans Administration hospital. The record includes a report of contact, VA Form 119, dated August 16, 1990. A VA Medical Administration Service employee noted that the veteran's representative had presented letters regarding the surgery the veteran was scheduled for on August 21, 1990. The VA employee noted that contract hospital clerks knew nothing of the veteran's case. The veteran's representative was informed that it did not appear that the surgery had been authorized by the VA. The representative was advised that if the veteran preferred to use non-VA facilities, payment could not be authorized for this care. The veteran was hospitalized at Milwaukee County Medical Complex from August 21 to August 24, 1990, during which time he underwent diskectomy and fusion at C4-5, C5-6, and C6-7, with a left iliac crest bone graft. In an April 1992 statement, Dr. Black indicated that the veteran had been referred to him by a Veterans Administration physician for evaluation of neck and shoulder pain. After evaluation on several occasions and a review of VA records, Dr. Black felt that the veteran's shoulder complaints were due to problems with his cervical spine, and the veteran was subsequently referred to Dr. An for evaluation and treatment of this problem. The above evidence demonstrates that the veteran was referred by a Veterans Administration physician to Dr. Black at Milwaukee County Medical Complex for evaluation of chronic neck and shoulder pain. It is therefore not unreasonable that the veteran would believe that the evaluations and associated diagnostic studies ordered by Dr. Black would be paid for by the VA. Accordingly, resolving all doubt in the veteran's favor, payment or reimbursement of the cost of the medical services initiated by Dr. Black at Milwaukee County Medical Complex in April and May 1990 is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 17.50(b). To the contrary, however, the record fails to establish that authorization was obtained for the medical services initiated by Dr. An at Milwaukee County Medical Complex from May to August 1990. The veteran was referred to Dr. An by Dr. Black, not by VA physicians. Although VA physicians may have been aware that the veteran was receiving treatment from Dr. An, such knowledge does not constitute authorization. Further, the August 16, 1990, report of contact reveals that appropriate Medical Administration Service personnel had no knowledge of the treatment the veteran was receiving at Milwaukee County Medical Complex, and that the veteran's representative was advised that the VA would not pay for medical care the veteran chose to obtain at non-VA facilities. In order to obtain reimbursement or payment of the cost of private medical services obtained without prior authorization from the VA, it is necessary that the services be either for an adjudicated service-connected disability, or a nonservice- connected disability associated with and aggravating a service- connected disability or the services may be for any disability of a veteran who has a total disability permanent in nature resulting from a service-connected disability. In addition, a medical emergency must exist with delay in obtaining the services being hazardous to the veteran's life or health and no VA or Federal facilities may be feasibly available to provide the services. 38 U.S.C.A. § 1728: 38 C.F.R. § 17.80. In this case, the initial criterion for payment or reimbursement of unauthorized medical services is satisfied, as the treatment in question was provided for the veteran's service-connected cervical spine disability. With respect to the nature of the veteran's condition, however, it cannot be concluded that a medical emergency existed at the time of the treatment the veteran received from May to August 1990. Although he had experienced chronic neck and shoulder pain, delay in obtaining these services would not have been hazardous to his life or health. Whether VA medical facilities could have provided the veteran the necessary care is unclear. Dr. An's July 1990 letter indicates that special equipment and trained nurses and other personnel were necessary to perform the August 1990 cervical spine surgery, but also notes that Dr. An did not have surgical privileges at the VA hospital. In any event, as reimbursement or payment for unauthorized medical services requires that all three criteria spelled out in 38 U.S.C. § 1728 and 38 C.F.R. § 17.80 be satisfied, that a medical emergency was not present is the reason why this portion of the veteran's claim cannot be allowed. The evidence is not so evenly balanced as to raise doubt in respect to any material issue. 38 U.S.C.A. § 5107(b). ORDER Payment or reimbursement of the cost of unauthorized medical services initiated by Kevin P. Black, M.D., at Milwaukee County Medical Complex in April and May 1990 is granted. Payment or reimbursement for unauthorized medical services initiated by Howard S. An, M.D., at Milwaukee County Medical Complex from May to August 1990 is denied. WAYNE M. BRAEUER 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.