BVA9506007 DOCKET NO. 93-07 931 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Medical Center in Decatur, Georgia THE ISSUE Entitlement to payment of unauthorized medical expenses incurred from August 6 to 13, 1991, at Lanier Park Hospital. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. T. Jones, Counsel INTRODUCTION The veteran served on active duty from October 1950 to October 1953. He died on August [redacted] 1991; the appellant is his widow. This matter comes to the Board of Veterans' Appeals (Board) from an August 1991 decision by the Department of Veterans Affairs (VA) Medical Center (VAMC) in Decatur, Georgia, which denied the appellant's claim for payment of unauthorized medical expenses incurred from August 6 to 13, 1991, at Lanier Park Hospital. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that VA should be responsible for payment of the unauthorized medical expenses in question because of the emergency nature of her husband's condition when he was hospitalized at Lanier Hospital and because his doctor thought it was imperative for him to be admitted to the nearest hospital which was Lanier Hospital. She further asserts that numerous contacts were made with the VAMC prior to his eventual transfer to that facility. She states that VA should pay for the expenses because it took five days to get him transferred to the VA facility, noting that the VAMC in Decatur was 100 miles away, as opposed to Lanier Park Hospital which was only 20 miles from their home. 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 and administrative records folder from the VAMC. 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 the appellant has not submitted evidence of a well-grounded claim for payment of unauthorized medical expenses incurred from August 6 to 13, 1991, at Lanier Park Hospital. FINDING OF FACT The appellant has not submitted evidence of a plausible claim for payment of unauthorized medical expenses incurred from August 6 to 13, 1991, at Lanier Park Hospital. CONCLUSION OF LAW The claim for payment of unauthorized medical expenses incurred from August 6 to 13, 1991, at Lanier Park Hospital, is not well- grounded. 38 U.S.C.A. §§ 1728, 5107(a) (West 1991); 38 C.F.R. § 17.80 (1994). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background During the veteran's lifetime, he was service-connected for internal derangement of the left knee, rated zero percent, and had no other service-connected disability. The veteran was admitted to Lanier Park Hospital in Gainesville, Georgia, on August 6, 1991, for treatment of elevated blood sugars and hypertension. It was reported that, in retrospect, he had had severe shoulder and neck pain which was thought to represent an acute myocardial infarction for over 3 to 4 days prior to admission. The hospital discharge summary indicates that he had no insurance, and contact was therefore made with the VAMC which agreed to take him to that facility for cardiac catheterization. He was discharged in ambulatory condition on August 13, 1991. The discharge diagnoses were: (1) Subacute anterior wall myocardial infarction; (2) high-grade AV block with AV disassociation and junctional rhythm; (3) arteriosclerotic heart disease; (4) uncontrolled diabetes mellitus; and (5) hyperlipidemia. The hospital summary was signed by Roger Owens, M.D. In an August 1991 letter, David Moore, M.D., reported treating the veteran on August 6, 1991, at his family practice office in Cleveland, Georgia, for angina and shortness of breath. Although the veteran desired VA hospitalization, Dr. Moore stated that he strongly encouraged the veteran to go to the nearest hospital for stabilization. Dr. Moore further reported that transfer involving an additional 1 to 1 1/2 hours of travel would have been medically unsafe, and, as things turned out, the veteran did have a myocardial infarction which eventually caused his death. The official certificate of the veteran's death shows that he died on August [redacted] 1991, at the VAMC in Decatur. His immediate cause of death was listed as recurrent ventricular tachycardia due to or as a consequence of a myocardial infarction of two weeks' duration due to or as a consequence of atherosclerosis of the coronary arteries of approximately 25-years' duration. It was also noted that another significant condition contributing to death was Type II, diabetes mellitus. Later, in August 1991, Dr. Owens, reported that the veteran was referred by Dr. Moore for evaluation of shoulder pain and severely uncontrolled diabetes mellitus, and it soon became apparent that he had sustained an acute myocardial infarction within 24 to 48 hours of the hospital admission. When it was concluded that the veteran had stabilized, VA was contacted, and there was a 4 to 5 day delay in transfer due to being unable to get the veteran transferred. A copy of a chronological chart from a social worker at Lanier Park Hospital shows that the VAMC in Decatur was contacted initially on August 8, 1991, and the next day, the VAMC denied authorization for the Lanier Park admission. On August 9, the VAMC was asked that the veteran be transferred to that facility, and the veteran was transferred to the VAMC in Decatur on August 13, 1991. In January 1992, Dr. Moore reported that he had helped arrange the admission to Lanier Park Hospital on August 6, 1991, and that he understood there was some delay on the part of the VA hospital in returning telephone calls to enable the veteran to be transferred to the VAMC. He added that the admission of the veteran to Lanier Park Hospital was necessary for emergent medical reasons. The appellant testified at a hearing at the VAMC in May 1992 in support of her claim. The essence of her testimony is an that emergent medical situation existed and that VA facilities were not feasibly available. II. Legal Analysis The threshold question to be answered in this case is whether the appellant has submitted evidence of a well-grounded claim. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). A well-grounded claim is defined as a "plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). If an appellant does not satisfy the initial evidentiary burden of submitting evidence showing the claim is well-grounded, then there is no duty on the part of VA to assist in developing evidence pertinent to the claim and, as a matter of law, the claim must be dismissed as not well-grounded. There is no dispute that admission to the private medical facility in question was unauthorized. Hence, in order to be entitled to reimbursement or payment for medical expenses incurred without prior authorization from the VA, all of the following must be shown: (a) That the treatment was either: (1) for an adjudicated service-connected disability, or (2) for a non-service-connected disability associated with and held to be aggravating an adjudicated service-connected disability, or (3) for any disability of a veteran who has a total disability permanent in nature resulting from a service-connected disability; (b) That a medical emergency existed and delay would have been hazardous to life or health; and (c) That no VA or other Federal facilities were 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; 38 C.F.R. § 17.80. Failure to satisfy any of the three criteria listed above precludes VA from paying unauthorized medical expenses incurred at a private hospital. The record reflects that the veteran had only one service-connected disability, a left knee disability, rated at a noncompensable level. The appellant does not allege, nor is it otherwise shown, that his service-connected knee disability was in any way related to his heart attack and diabetes mellitus which led to his hospital admission to Lanier Park on August 6, 1991. As there is no evidence that the veteran meets the first criterion for reimbursement of unauthorized medical expenses, the claim must be denied as not well-grounded. Although a claim need not be conclusive to be well-grounded, it must be accompanied by evidence, not just mere allegations. See Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). Due consideration has been given to the statements from Dr. Moore, who treated the veteran prior to his admission to Lanier Park Hospital, and Dr. Owens, who apparently was the attending physician at Lanier Park Hospital. However, neither physician said that the service-connected condition had been implicated in any way, and the appellant is not a competent witness on the matter of medical causation. If the first criterion for reimbursement of the unauthorized medical expenses is not met, satisfying the other criteria, that is, showing there was a medical emergency and the unavailability of a VA hospital, would not salvage the appellant's claim. The reasonable doubt doctrine does not apply. VA regrets a favorable disposition cannot be entered. ORDER The claim for payment of unauthorized medical expenses incurred from August 6 to 13, at Lanier Park Hospital, is dismissed as not well-grounded. M. CHEEK 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.