BVA9501407 DOCKET NO. 93-02 687 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Bay Pines Department of Veterans Affairs Medical Center THE ISSUE Entitlement to payment or reimbursement for the cost of unauthorized private hospitalization on July 30, 1990. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran served on active duty from October 1954 to October 1957 and from December 1957 to December 1960. He died in October 1990. This matter comes on appeal to the Board of Veterans' Appeals from an August 1991 decision of the Medical Administration Service of the Department of Veterans Affairs (VA) Medical Center, Bay Pines, Florida (AOJ). Payment of the costs of outpatient services received by the veteran from June 14 to August 13, 1990, were approved following a hearing conducted in May 1992. The sole remaining issue is whether payment or reimbursement should be made for the cost of the veteran's private hospitalization on July 30, 1990. The appellant is the executrix of the veteran's estate. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that payment or reimbursement for the cost of the veteran's hospitalization on July 30, 1990, is warranted. She maintains that the treatment received by the veteran on July 30, 1990, was authorized by the VA. She further avers that the veteran had a valid outpatient fee basis card and that, since the treatment in question was less than 60 days prior to his death, the veteran's condition should be considered emergent. 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 files. 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 met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. FINDINGS OF FACT 1. The veteran was hospitalized at Lakeland Regional Medical Center (Lakeland) and underwent a therapeutic bilateral orchiectomy on July 30, 1990. 2. At that time, he had been in receipt of a total rating based on individual unemployability since July 1974. 3. The veteran's condition on July 30, 1990 was not emergent. 4. A VA medical facility was feasibly available to provide the needed treatment. 5. Prior authorization for the July 30, 1990 hospitalization was not obtained. CONCLUSION OF LAW The appellant has not submitted evidence of a well-grounded claim. 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 The appellant's claim is not "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, she has not presented a claim that is plausible. All relevant facts, however, have been properly developed. The veteran was admitted to Lakeland on July 30, 1990. It was reported that a recent ultrasound had demonstrated undifferentiated cancer of the prostate. After various treatment options had been discussed with the veteran, he had elected a therapeutic bilateral orchiectomy, which was performed that day. The discharge diagnosis that same day was cancer of the prostate. The veteran died on October [redacted] 1990 due to underlying carcinoma of the prostate with metastases. A report of contact dated February 25, 1992 discloses that the Tampa VA Medical Center had not approved any treatment for the verteran, who had last been seen at that facility in August 1985. The appellant was unable to provide the name or the area of the VA medical facility which authorized treatment. A review of the fee authorization program showed that no authorization had been issued. On February 28, 1992, a representative of Lakeland related that the VA had not been considered as a source of payment until after insurance had left a balance due. He believed that pre- authorization had been requested from the veteran's private insurance company. The appellant was accorded a personal hearing at the AOJ in May 1992. She testified that the Tampa VA medical facility was 70 to 80 miles away from her home. She maintained that the veteran had a valid fee-basis card and that Lakeland had notified the Tampa VA medical facility of the veteran's hospitalization. At the conclusion of the hearing, payment for outpatient services received by the veteran from June 14 to August 13, 1990 was approved on the basis that the veteran had not been notified that his obsolete outpatient fee basis card had been cancelled. 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. All three criteria must be met. 38 U.S.C.A. § 1728: 38 C.F.R. § 17.80. No reimbursement or payment of services not previously authorized will be made when such treatment was procured through private sources in preference to available Government facilities. 38 C.F.R. § 17.89. In this case, although the appellant has contended to the contrary, the record does not show that prior authorization for the July 30, 1990 hospitalization was obtained. The Tampa VA medical facility has reported that their records disclosed no evidence of such authorization being granted and Lakeland has said that pre-authorization was likely requested from the veteran's private insurance company, not the VA. As the veteran was in receipt of a total rating based on individual unemployability for many years, the initial criterion for payment or reimbursement of unauthorized medical expenses is satisfied. The summary of the veteran's hospitalization on July 30, 1990, however, clearly shows that the bilateral orchiectomy was an elective procedure. Although the veteran's underlying illness, cancer of the prostate, resulted in his death within a short time, the treatment he received on July 30, 1990, was not necessitated by an emergent condition. Further, it has not been demonstrated that this procedure could not have been performed at an available VA medical facility. That the veteran had been issued a fee basis card is not a basis for an allowance as the card was obsolete and authorized outpatient, not inpatient, services. Accordingly, the Board finds that the appellant has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that her claim is well grounded. Thus, since the Board does not have jurisdiction to adjudicate her claim, her appeal is dismissed. See Boeck v. Brown, 6 Vet.App. 14 (1993). The Board notes that this decision is to the appellant's benefit since, if she should decide to file another claim in the future, she will not be burdened with having to submit new and material evidence; she need only present a well-grounded claim. McGinnis v. Brown, 4 Vet.App. 239, 244 (1993). ORDER Entitlement to payment or reimbursement of the cost of unauthorized private hospitalization is dismissed. WAYNE M. BRAEUER 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.