Citation Nr: 0006160 Decision Date: 03/08/00 Archive Date: 03/17/00 DOCKET NO. 97-31 043 ) DATE ) ) On appeal received from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to payment or reimbursement for the cost of private medical services received during hospitalization from July 6 to July 11, 1996. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD Elizabeth Gallagher, Counsel INTRODUCTION The veteran had active duty from August 1967 to October 1968. This matter came before the Board of Veterans' Appeals (Board) on appeal from a March 1997 determination by the Department of Veterans Affairs (VA) Outpatient Clinic in Winston-Salem, North Carolina (VAOPC). The records indicate that the veteran was treated for the condition at issue as an outpatient prior to his hospital admission on July 6, 1996. No claim for reimbursement for the outpatient treatment is apparent and that matter was not adjudicated. Consequently, the appellate issue is limited to payment or reimbursement for the hospital medical treatment received from July 6 to 11, 1996, while an inpatient. In October 1999, the Board remanded this case to afford the veteran the opportunity, should he so desire, to request a meeting with the supervisor of the individual who initially denied his claim, to request a hearing, and to request reconsideration of the initial denial, pursuant to a new regulation concerning procedures for reconsideration of claims for reimbursement for non-VA care not authorized in advance, which was promulgated and became final, effective from August 17, 1999. See 38 C.F.R. § 17.133 (Effective August 17, 1999). In November 1999, the RO was notified that the veteran did not wish to request such a meeting, hearing or reconsideration. Therefore, this matter is now ready for appellate review. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of this appeal has been obtained by the RO. 2. The veteran received private medical treatment for a severe perineal abscess with right buttock cellulitis from July 4 through July 11, 1996, without prior authorization from VA. From July 6 to July 11, he was hospitalized for treatment of this condition. 3. At all times pertinent to this claim, the veteran had a combined evaluation for service-connected disabilities of 100 percent which was protected. 4. The unauthorized private medical care was not rendered in a medical emergency of such a nature that delay would have been hazardous to life or health. 5. VA medical facilities were feasibly available during the pertinent period. CONCLUSION OF LAW The criteria for reimbursement or payment of the cost of unauthorized private hospital and medical services from July 6 through July 11, 1996 have not been met. 38 U.S.C.A. §§ 1728, 5107 (West 1991); 38 C.F.R. § 17.120 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran is seeking reimbursement or payment of the cost of unauthorized private hospitalization and medical services administered during the period from July 6 through July 11, 1996. He has presented a well-grounded claim, which is a claim that is plausible, as required by 38 U.S.C.A. § 5107(a). The Board is satisfied that all relevant facts have been properly developed and that 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 VA will indemnify a veteran against the cost of private medical treatment, which was incurred without prior VA authorization, provided three criteria are satisfied. Those criteria are described in 38 C.F.R. § 17.120. In brief, the VA will pay for unauthorized non-VA medical treatment 1) if the treatment was administered for an adjudicated service- connected disability, for a non-service-connected disability associated with and held to have been aggravating an adjudicated service-connected disability, for any disability if the veteran had a total disability permanent in nature that resulted from a service-connected disability, or for any disability if the veteran was a participant in a vocational rehabilitation program under 38 U.S.C.A. Chapter 31; 2) if the injury or illness being treated was emergent such that delay would have been hazardous to the veteran's life or health; and 3) if the private medical treatment was provided when no VA or Federal facility was available where appropriate treatment could have been obtained. At the time the veteran was hospitalized, the combined disability evaluation for all of his service-connected disabilities was 100 percent. The 100 percent rating had been continuously in place since separation from service. This being for a period of over 20 years, the rating is protected and thus legally recognized as permanent. On July 4, 1996, the veteran presented to the Emergency Room at the High Point Regional Hospital, in High Point, North Carolina with complaints of painful cellulitis of the perineal area underneath the scrotum and in front of the anus, with drainage. The problem was treated on an outpatient basis until July 6, 1996, when it was noted that the veteran was in extreme discomfort with perineal pain, and cellulitis going around to the right buttock. The veteran was admitted to that hospital from July 6 through July 11, 1996 for incision and drainage of the abscess, vigorous wound care, intravenous antibiotics and close observation. In February 1997, the veteran filed a claim for reimbursement or payment of the portion of the High Point Regional Hospital bill not covered by his insurance. This claim was denied by the VAOPC in March 1997 on the grounds that the condition for which he received the private medical treatment was not emergent, and that VA facilities were feasibly available where he could have received treatment. The veteran filed a notice of disagreement and appealed the denial. In support of his claim, the veteran presented medical records and a letter from his private physician L. Dale Williams, M.D., of High Point, North Carolina. Dr. Williams stated in his July 1996 letter that, due to his perineal abscess and right buttock cellulitis, it would not have been possible for the veteran to sit and drive 70 miles to the nearest VA medical facility for treatment. The veteran has asserted that he had been informed that if a veteran had a service-connected disability or disabilities which were evaluated as 100 percent disabling, he would, in certain situations, be reimbursed for private medical care deemed necessary to treat any ailment. He assumed that this was one of those situations. He did not believe it would be possible, or practical, to drive to the nearest VA medical center to seek treatment over the 4th of July holiday weekend. He further asserted that it would have been detrimental to his health or life to drive 70 miles to the nearest VA medical facility on July 6th, given his infection. The information the veteran received-that he is eligible for treatment at VA facilities or at VA expense for all medical care-is correct as to the first factor for eligibility. He is rated as 100 percent disabled due to service connected disabilities, and the rating is permanent. However, in order to qualify for reimbursement for private medical services not authorized in advance two other essential elements need to be considered. Those are the questions of medical emergency and availability of VA facilities. Upon review of all the evidence contained in the claims files, the Board can only conclude that at the times of the unauthorized hospitalization and medical services in question, the veteran's condition was not emergent such that resort to available VA medical resources was precluded. The veteran has, in substance, acknowledged that he neither sought, nor wanted to be treated as the available VA facility. There has been no medical evidence presented to show that the veteran could not have been safely driven by another person, or by ambulance if necessary, to a VA medical center for the required incision, drainage and intravenous medications for his perineal abscess and right buttock cellulitis. Therefore, the Board finds that the veteran did not obtain prior VA authorization for the private medical services rendered from July 4 through July 11, 1997, that his condition was not emergent from July 4 through July 11, 1997 such that resort to VA medical resources was precluded, and that appropriate VA medical facilities were feasibly available for his use. In this case, the veteran met the first criterion of 38 C.F.R. § 17.120, as he has service-connected shell fragment wounds that have been rating at 100 percent for over 20 years and are thus recognized as permanent. However, the second and third criteria, that the condition must have been emergent, that is that the services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health, and that 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, have not been met. As all three criteria for payment or reimbursement for unauthorized medical expenses must be met, the Board cannot grant the veteran's claim on appeal. 38 C.F.R. § 17.120. Accordingly, the Board finds that the preponderance of the evidence is against the veteran's claim for reimbursement or payment of the cost of unauthorized private medical services from July 6 through July 11, 1997. 38 U.S.C.A. § 1728; 38 C.F.R. § 17.120. The evidence is not so evenly balanced as to raise doubt with respect to any material issue. 38 U.S.C.A. § 5107(b). ORDER Entitlement to reimbursement or payment of the cost of unauthorized private hospital and medical services from July 6 through July 11, 1997 is denied. ROBERT D. PHILIPP Member, Board of Veterans' Appeals