BVA9505667 DOCKET NO. 93-09 744 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to payment or reimbursement of the cost of unauthorized medical services rendered from June 25, 1992, through July 16, 1992. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert E. P. Jones, Associate Counsel INTRODUCTION The veteran served on active duty from December 1942 to October 1945. The certified issue came before the Board of Veterans' Appeals (Board) on appeal from an October 1992 decision of the Department of Veterans Affairs Medical Center (VAMC) in Minneapolis, Minnesota. His claim for reimbursement was denied on the grounds that he was not rated as service connected for the condition treated, an aortic aneurysm. In his September 1992 reimbursement claim, the veteran indicated he was seeking service connection for the aneurysm as a disability residual to injuries suffered in a jeep accident in service. The question of service connection for this disability has never been adjudicated by a regional office (RO) rating board. It is to be referred to the appropriate RO for consideration and necessary action. For reasons which will become apparent upon complete reading of the decision, the claim for service connection for the aneurysm is not intertwined with the issue before the Board. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he is entitled to payment or reimbursement of unauthorized medical treatment incurred at the St. Mary's Medical Center from June 25, 1992 through July 16, 1992. The veteran asserts that the aortic aneurysm he experienced resulted from an in-service jeep accident and should be recognized as a service connected disability. Since he was treated for a service connected disability, it was an emergency and no VAMC was available, he qualifies for payment or reimbursement of the expenses incurred. 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 the preponderance of the evidence is against the veteran's claim for payment or reimbursement of unauthorized medical treatment incurred at the St. Mary's Medical Center from June 25, 1992 through July 16, 1992. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the VAMC. 2. The veteran is rated as service connected for deformity of the pelvis and sacrum and residuals of fractures of the scapula and pelvis. 3. From June 25 through July 16, 1992 he was treated at a private medical facility for a ruptured abdominal aortic aneurysm. 4. The veteran's initial claim for service connection for disability related to his aneurysm was made in September 1992. CONCLUSION OF LAW The criteria for payment or reimbursement of the medical expenses for treatment at a private medical facility from June 25, 1992, through July 16, 1992, have not been met. 38 U.S.C.A. §§ 1728, 5107 (West 1991); 38 C.F.R. §§ 17.80, 17.85 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that the veteran's claims is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). That is he has presented a claim which is plausible. 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 veteran contends that his treatment at St. Mary's Hospital from June 25, 1992, through July 16, 1992 meets all the requirements for reimbursement in that it was for a service connected disability, was an emergency and no VAMC was available. Since he believes he meets all the requirements he believes he is entitled to payment or reimbursement of the resulting medical expenses. The veteran was seriously injured in a jeep accident in July 1943. At that time the veteran experienced multiple fractures involving the pelvis, sacrum, left clavicle and left scapula. Medical Board examination in October 1945 revealed that the veteran's pelvis was tilted slightly up to the right. The veteran has some neurological deficit of the left leg and foot and periarticular thickening of the right ankle. The medical board determined that the veteran was not fit for duty and he was discharged in October 1945. The veteran was assigned a 20 percent disability evaluation for deformity of the pelvis and sacrum with traumatic arthritis and a noncompensable rating for healed fracture of the scapula and clavicle in a December 1945 rating action. The veteran had sudden onset of abdominal pain at 4 a.m. on June 26, 1992. He went to the St. Mary's Hospital emergency room. He was hypotensive and ultrasound revealed an abdominal aortic aneurysm. The veteran was taken directly to surgery where exploration revealed an infrarenal abdominal aortic aneurysm which was ruptured on the right side. The ruptured aneurysm was repaired with a graft. The veteran testified at a hearing before the Medical Administrative Service in February 1993. The veteran stated that he had asked his surgeon why he developed an aneurysm. The veteran testified that when he told the surgeon that his body had been crushed in a jeep accident during service, the surgeon stated that the aneurysm must have been a residual of that accident. 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. At the time the veteran developed the abdominal aortic aneurysm the veteran's only service-connected disabilities were deformity of the pelvis and sacrum with traumatic arthritis, rated as 20 percent disabling and healed fracture of the scapula and clavicle, rated as noncompensable. At the time of the treatment in question service connection was not in effect for any cardiovascular or peripheral vascular disorder, and no such claim was pending. Claims for reimbursement for medical services may be made up to 2 years after the services were rendered; but if the services were rendered prior to adjudication allowing service connection, payment cannot be made for care related to the service connected disability which was received prior to the effective date of any award. 38 C.F.R. § 17.85(b)(2). The effective date of an award of service connection, under the circumstances presented here can not be earlier than the date of receipt of the claim. 38 C.F.R. § 3.400. Since the initial claim was not made until several months after the treatment, there is no legal basis upon which any such grant could qualify him for the benefit sought. Argo v. Derwinski, 2 Vet.App. 509 (1992). The Board, of course, makes no finding in this decision which has any bearing on the merits of the service connection issue, which, as noted above, has not been adjudicated and need not be resolved in order to deal with the issue before the Board. The Board finds only that the veteran has not met the first requirement for payment or reimbursement of unauthorized medical treatment. Treatment for the aneurysm was not for an adjudicated service-connected disability or a disability for which a claim was pending. Furthermore, the aneurysm was not aggravating a service-connected disability. Since the first of 3 required elements was not present, we need not consider the applicability of the other two. 38 U.S.C.A. § 1728; 38 C.F.R. § 17.80. Consequently payment or reimbursement of the medical expenses for treatment at St. Mary's Hospital from June 25, 1992, through July 16, 1992 is not warranted. The evidence is not so evenly balanced that there is doubt as to any material issue. 38 U.S.C.A. § 5107. ORDER Payment or reimbursement of the cost of unauthorized medical services rendered from June 25, 1992, through July 16, 1992, is denied. ROBERT D. PHILIPP 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.