BVA9501996 DOCKET NO. 93-07 078 ) DATE ) ) On appeal from a decision by the Department of Veterans Affairs Medical Center in Allen Park, Michigan THE ISSUE Entitlement to payment of unauthorized dental expenses incurred from March 27 to April 5, 1989. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Keith W. Allen, Associate Counsel INTRODUCTION The veteran served on active duty from August 1959 to August 1961. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 1990 decision by the Department of Veterans Affairs (VA) Medical Center (VAMC) in Allen Park, Michigan, which denied the veteran's claim for payment of unauthorized dental expenses incurred from March 27 to April 5, 1989. In statements submitted during the course of his appeal, the veteran mentioned dental treatment, such as a permanent bridge, he would need to have completed after April 5, 1989. He has not, however, filed a claim pertaining to any treatment received after April 5, 1989. If he desires to do so, he should contact his local VAMC. The focus of this decision is, therefore, limited to treatment provided by a private dentist up to and including April 5, 1989. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that VA should be responsible for payment of the private dental expenses he incurred from March to April 1989. He points out that his treatment was for service-connected teeth numbered 21 and 22, and he claims that he contacted personnel at the local VAMC shortly after treatment was begun in an effort to have it completed by VA, but was refused. 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 claim for payment of unauthorized dental expenses incurred from March 27 to April 5, 1989. FINDINGS OF FACT 1. The veteran is service-connected for teeth numbered 21 and 22 because of trauma he sustained to these teeth while on active duty. 2. He incurred unauthorized dental expenses from March 27 to April 5, 1989; this treatment included a root canal and a bridge involving service-connected teeth numbered 21 and 22. 3. However, the evidence as a whole shows that this treatment was nonemergent, and VA facilities were feasibly available at the time it was performed. CONCLUSION OF LAW The criteria for payment of unauthorized dental expenses incurred from March 27 to April 5, 1989, have not been met. 38 U.S.C.A. §§ 1728, 5107 (West 1991); 38 C.F.R. §§ 17.80, 17.89 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Brief Factual Background The veteran is service-connected for teeth numbered 21 and 22. He sustained trauma to these teeth while on active duty. They are rated at a noncompensable level. On March 27, 1989, the veteran visited the dental office of Robert Wood, D.D.S., seeking treatment for a fractured abutment tooth (number 20) under an existing four unit cantilever bridge, which included service-connected teeth numbered 21 and 22. Immediate treatment was limited to root canal therapy for tooth number 20. The veteran returned to Dr. Wood's office on April 5, 1989, at which time a temporary bridge was fitted in the area of teeth numbered 20, 21 and 22. In May 1989, the veteran filed a claim, seeking payment of the unauthorized dental expenses he incurred in April 1989. He submitted a voucher showing the teeth that were treated by Dr. Wood and the exact dates of treatment. Dr. Wood submitted a statement in April 1990, reporting that, in his estimation, the veteran's situation was emergent and that proper treatment consisted of not only treating tooth number 20 (specifically, the painfully exposed nerve in this tooth), but the loss of the entire quadrant of occlusal support (i.e., teeth numbered 21 and 22). Photographs of the veteran's mouth were submitted with this statement. However, the Chief of VA Dental Service reviewed the file and claim for unauthorized dental care and filed a report in May 1990. The chief dentist said that the veteran had been eligible for Class IIa outpatient dental care since approxi-mately 1967, but that each course of treatment required both a proper request and prior approval. The chief dentist noted that emergency dental care could be subsequently authorized for any eligible dental beneficiary, but only after timely notice and verification of emergent circumstances. The scope of the treatment, he said, was limited to immediate palliative care. The chief dentist noted that the treating dentist originally considered the veteran's emergency dental needs to require only endodontic therapy for tooth number 20 and that this was later expanded to include "temporization" of the related fixed bridge. However, the chief dentist indicated that a permanent replacement appliance could not be considered as palliative treatment. The chief dentist said that the veteran initiated a course of unauthorized care on or about March 27, 1989, and failed to notify the VA facility until May 15, 1989. Further, the chief dentist indicated that the veteran lived within the geographical area being serviced by the VAMC in Allen Park, Michigan, and could have obtained dental care at that facility. The chief dentist concluded that reimbursement to the veteran was not supported by VA regulations. While testifying at a May 1992 hearing, the veteran acknowledged that he did not seek or obtain authorization from VA prior to incurring dental expenses in April 1989 from Dr. Wood. He said he originally sought treatment from his private dentist on March 27, 1989, after experiencing pain in tooth numbered 20. After a clinical examination, Dr. Wood reportedly performed root canal therapy on this tooth, in addition to putting in a partial filling, and scheduled him for follow-up treatment in a few days, so that a permanent filling could be put in. When he returned to Dr. Wood's office on April 5, 1989, the doctor reportedly said that the bridge in the area of the oral cavity had become loose and the teeth under it had decayed (which included service- connected teeth numbered 21 and 22). As a result, a temporary bridge was put in for replacement (the veteran pointed out that the original bridge had been fitted by VA sometime during the late 1960's, although he said that he had not been treated by VA for many years). In further testimony, the veteran claimed that, shortly after leaving Dr. Wood's office, he contacted personnel at the local VAMC regarding the possibility of his coming in and having VA complete the work that needed to be done (e.g., putting in a permanent bridge). He said that he was told by VA personnel that, since a temporary bridge had already been put in and treatment started, VA could not be held responsible for expenses associated with this treatment because he had not obtained prior authorization for it and because it could have been performed at a local VA facility. The veteran testified that, at the time he contacted VA, he was certain that he was eligible for treatment because he knew that the teeth that were being treated were service-connected, and he expressed bewilderment as to why he had not been instantly approved. He indicated that a portion of the dental expenses in question had already been paid by his private insurance carrier. 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. The veteran has acknowledged that prior VA authorization for the treatment in question was not obtained. Hence, in order to be entitled to payment or reimbursement for dental expenses incurred without prior authorization from 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; and (b) That a medical emergency existed of such nature that 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. Reimbursement or payment of unauthorized dental expenses will not be approved when such treatment was procured through private sources in preference to those provided by VA. See 38 C.F.R. § 17.89. By his own admission, the veteran did not obtain authorization from VA prior to incurring dental expenses in March and April 1989 in connection with treatment rendered by Dr. Wood. He has testified that it was not until after treatment had begun for a neighboring non-service-connected tooth (number 20) that he realized that treatment was necessary for his service-connected teeth numbered 21 and 22. At this point, he claims that he contacted personnel at the local VAMC in an attempt to have VA complete the treatment that he needed. However, there is no evidence on file supporting his assertion that he contacted VA officials soon after treatment was initiated, as the first corroborating evidence of contact by him occurred in May 1989, when he filed his claim for payment of unauthorized dental expenses, which was several weeks after the treatment in question had been rendered. However, disposition of the case does not turn on this fact. Under VA legal authority, payment of unauthorized private dental expenses will only be approved when all three of the above- mentioned criteria have been satisfied. The veteran meets the first criterion of the applicable law and regulation because at least some of the treatment in question was for service-connected teeth (i.e., numbers 21 and 22), although some of the March 1989 treatment appears to have been for a neighboring non service- connected tooth. Questions exist as to whether all of the treatment was for a true medical emergency, given that the treating dentist has characterized the situation as such while the Chief of the VA Dental Service has made the opposite finding. However, even assuming arguendo that a true emergency existed, the fact is the chief dentist has indicated that a local VAMC was available to provide the treatment needed. The failure to meet this criterion weakens the case and the argument that the fitting of a dental bridge, while crucial to masticatory function, rises to the level of an emergency contemplated by VA law and regulation, which require that life or health be in peril. Due consideration has been given to the testimony here. However, the competent medical evidence is more probative on the ultimate questions of whether a true emergency existed and whether a VA facility was feasibly available to provide the treatment in question. The weight of the evidence shows that a VA facility was "feasibly available" to provide the veteran's treatment. Hence, payment of the unauthorized dental expenses in question is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Payment of unauthorized dental expenses incurred from March 27, to April 5, 1989 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.