BVA9505486 DOCKET NO. 93-11 191 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Medical Center in Dallas, Texas THE ISSUE Entitlement to payment of unauthorized medical expenses incurred from June 9 to 11, 1992, at Huguley Memorial Medical Center. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Keith W. Allen, Associate Counsel INTRODUCTION The veteran served on active duty from April 1954 to April 1956. This matter comes to the Board of Veterans' Appeals (Board) from an October 1992 decision by the Department of Veterans Affairs (VA) Medical Center (VAMC) in Dallas, Texas, which denied the veteran's claim for payment of unauthorized medical expenses incurred from June 9 to 11, 1992, at Huguley Memorial Medical Center. The veteran was hospitalized at Huguley Memorial Medical Center from June 5 to 11, 1992, but a portion of his unauthorized medical expenses, those incurred from June 5 to 8, 1992, have already been paid by VA, so this appeal only concerns the remaining portion of his bills which have not been paid by VA. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends VA should be responsible for payment of the medical expenses in question because he was treated for a service-connected disability and because his condition never sufficiently stabilized at the private hospital so as to permit transfer to a local VAMC. He points out he contacted personnel at the local VAMC shortly after his admission to the private facility and claims VA authorized him to receive treatment there. 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 medical administration records folder. 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 preponderance of the evidence is against the claim for payment of unauthorized medical expenses incurred from June 9 to 11, 1992, at Huguley Memorial Medical Center. FINDINGS OF FACT 1. The veteran is service-connected for hypertensive cardiovascular disease, rated 60 percent disabling, and for two other disorders, rated at a noncompensable level, which are not relevant to the subject matter of this appeal; he is also rated permanently and totally disabled due to individual unemployability. 2. He incurred unauthorized medical expenses from June 5 to 11, 1992, while being treated conservatively for diverticulitis and severe coronary artery disease; as of June 9, 1992, his condition had sufficiently stabilized so that transfer to a local VAMC could have safely been accomplished. CONCLUSION OF LAW The criteria for payment of unauthorized medical expenses incurred from June 9 to 11, 1992, at Huguley Memorial Medical Center, have not been met. 38 U.S.C.A. §§ 1728, 5107 (West 1991); 38 C.F.R. §§ 17.80, 17.80a (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The veteran is service-connected for hypertensive cardiovascular disease, rated 60 percent disabling, and for two other disorders, rated at a noncompensable level, which are not relevant to the subject matter of this appeal; he is also rated permanently and totally disabled due to individual unemployability. On June 5, 1992, the veteran was seen in the emergency room of Huguley Memorial Medical Center, complaining of lower abdominal pain and nausea. He had no chest pain, and he had not been vomiting. He was admitted to the intensive care unit of the hospital to rule out diverticulitis, possible appendicitis, and probable angina with coronary artery disease. Subsequent tests and studies were completed. The attending physician did not believe that the veteran was a good candidate for surgery because of his history of coronary artery disease, so, with the veteran's consent (and the consent of a cardiologist and internist at the hospital), a conservative medical management plan was instituted, consisting of intravenous (IV) antibiotics and nasogastric (NG) suctioning. This treatment plan proved successful, and on June 9, 1992, the veteran was transferred to a room in the general ward of the hospital. At that time, NG suctioning was discontinued, but the IV antibiotics were continued. He was discharged from the facility on June 11, 1992, with a follow-up appointment scheduled on an outpatient basis in the gastrointestinal (GI) clinic. At the time of his discharge, his pain had resolved, and he was free to resume a regular diet. The discharge diagnoses were diverticulitis, severe coronary artery disease, and morbid obesity. A Report of Contact on file shows that the veteran contacted the local VAMC on June 8, 1992, three days after his admission to Huguley Memorial Medical Center. The nature of his treatment was discussed. On June 9, 1992, personnel at the local VAMC contacted officials at Huguley Memorial Medical Center, including the veteran's treating physician, and notified them that he must be transferred to the local VAMC as soon as his condition sufficiently stabilized, as VA could not pay for expenses incurred beyond the point of stabilization. It was requested that his treatment records be forwarded to the local VAMC so that they could be reviewed. Later that day, a VA physician approved payment of some of the unauthorized medical expenses that had been incurred by the veteran. In August 1992, after additional records had been received and reviewed, a VA physician approved payment of the expenses that were incurred by the veteran at the private hospital from June 5 to 8, 1992, but he denied the claim for payment of those expenses incurred beyond this date. It was acknowledged that the treatment rendered was of an emergent nature and that, because of this, VA facilities were not feasibly available for the first three days of the veteran's hospital stay. During testimony at a December 1992 hearing, the veteran's representative claimed that the veteran contacted the local VAMC on June 5th, the day of his admission to Huguley Memorial Medical Center, and notified them of this. He said authorization for treatment at the private hospital was then given by VA personnel during the ensuing discussion, despite the fact that there was no record of this on file. He expressed dismay that VA had not contacted the veteran (after speaking with officials at the private hospital on June 8, 1992) to determine if his condition had sufficiently stabilized so as to permit safe transfer to the local VAMC. The veteran described the treatment that he received during his hospital stay, and he said doctors at the private hospital even told him he could die. He acknowledged that a conservative medical management plan was instituted in lieu of a surgical option because of his heart condition and that he was transferred out of the intensive care unit on June 9th. It was pointed out that the treatment was, at least in part, rendered for his service-connected coronary artery disease and that, if he would have been transferred, this would have aggravated it. II. Legal Analysis 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 which is not inherently implausible. All relevant facts have been properly developed and, therefore, VA's duty to assist him in developing evidence pertinent to his claim has been satisfied. Id. Despite the contentions of the veteran and his representative to the contrary, there is no supporting evidence on file showing that VA personnel authorized him to receive treatment at Huguley Memorial Medical Center in June 1991. Quite the contrary, when contacted on June 8th, records confirm that VA officials explained to personnel at the private hospital, including the veteran's treating physician, that payment could not be approved beyond the date that his condition stabilized, and that they should notify VA when this occurred. There is no record of contact prior to June 8th. Nevertheless, since VA has already paid a portion of the medical expenses incurred by the veteran at Huguley Memorial Medical Center (i.e., those pertaining to treatment that he received from June 5 to 8, 1992), it can be assumed that he has satisfied the criteria of 38 U.S.C.A. § 1728 and 38 C.F.R. § 17.80. This legal and regulatory authority governs payment of unauthorized medical expenses and requires that the treatment rendered be for a service-connected disability (or for any disability if, as here, the veteran has a total rating) and that it be so emergent as to render VA facilities not feasibly available. Id. However, in some instances, payment of unauthorized medical expenses beyond a certain point is precluded. Payment of unauthorized medical expenses is precluded beyond that point that a VA physician determines that the veteran's condition sufficiently stabilized so as to permit a safe transfer to a local VAMC for further treatment. See 38 C.F.R. § 17.80a. After reviewing the records concerning the veteran's hospital stay at Huguley Memorial Medical Center, a VA physician determined that the veteran's condition had sufficiently stabilized as of June 9, 1992, so that transfer at that point to a local VAMC would not have posed an unreasonable risk to his life or health. The treatment records from the private hospital support this finding since it was on this date that the veteran was transferred from the intensive care unit to a room in the general ward of the hospital. It is also noteworthy that a conservative treatment plan was used throughout his time spent in the hospital and that this was successful in relieving his symptoms. The opinion of the VA physician is strong evidence against the claim and is not refuted by any other competent evidence on file, and neither the veteran nor his representative, as lay persons, have the medical expertise or training to do so. See cf. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). For the foregoing reasons, I find that the preponderance of the evidence is against the claim. Therefore, the benefit-of-the- doubt rule does not apply, and payment of the unauthorized medical expenses in question is not in order. See 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER The claim for payment of the unauthorized medical expenses incurred from June 9 to 11, 1992, at Huguley Memorial Medical Center, is denied. 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.