BVA9505368 DOCKET NO. 93-01 145 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Medical Administration Service, VA Medical Center, Allen Park, Michigan THE ISSUE Entitlement to reimbursement or payment of the cost of unauthorized medical services administered from December 21 to December 23, 1990. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Robert B. Swanson, Associate Counsel INTRODUCTION The veteran had active service from December 1965 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February and March 1991 decisions by the Medical Administration Service (MAS), of the Department of Veterans Affairs (VA) Medical Center in Allen Park, Michigan. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the VA should pay for the cost of the medical treatment he received at a non-VA medical facility in December 1990. 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 veteran's psychiatric disability is permanent in nature, and therefore, he satisfied the first of three regulatory criteria for indemnification against the cost of unauthorized private medical treatment administered from December 21 to December 23, 1990. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained. 2. The veteran received treatment for a cardiovascular disability at a non-VA medical facility, Three Rivers Area Hospital, from December 21 to December 23, 1990, without prior authorization from the VA. 3. At the time the veteran received the unauthorized medical care, service connection was in effect for a psychiatric disability. In addition, a total schedular rating had been in effect for the psychiatric disability since March 1984. The veteran has been considered incompetent for VA purposes since July 1984. CONCLUSION OF LAW The veteran's total schedular psychiatric disability is permanent in nature. 38 U.S.C.A. §§ 1728, 5107 (West 1991); 38 C.F.R. §§ 17.80, 17.89 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran is seeking indemnification against the cost of non-VA medical treatment administered from December 21 to December 23, 1990. He contends that the VA is financially responsible for the cost of the non-VA medical care that he received because he had a total schedular service-connected disability. In December 1983, the Board granted service connection for an acquired psychiatric disability. In January 1984, the Detroit Regional Office (RO) assigned the veteran's psychiatric disability a 70 percent rating, effective from March 1980. In July 1984, the RO assigned a total schedular rating for the veteran's psychiatric disability, effective from March 1984. In addition, the RO found that the veteran was incompetent for VA purposes, effective from July 1984. In December 1990, the veteran was hospitalized for several days at a non-VA medical facility, Three Rivers Area Hospital, for treatment of a cardiovascular disability. In February and March 1991, the MAS denied claims for the payment of the cost of the care provided the veteran on the grounds that the care was provided for a disability that was not an adjudicated service- connected disability, nor was the veteran's total schedular psychiatric disability permanent in nature. The VA will indemnify a veteran against the cost of private medical treatment, which was incurred without prior VA authorization, provided three criteria are satisfied. Since only the initial criterion was addressed by the MAS, the Board can only review the propriety of the MAS decision with respect to that criterion. Under the initial criterion, the VA will pay for unauthorized non-VA medical treatment if the unauthorized treatment was administered for any disability of a veteran provided he or she had a total service-connected disability, which was permanent in nature. 38 C.F.R. § 17.80(a). The record on appeal indicates that the veteran has a total schedular psychiatric disability. Thus, the only remaining issue to satisfy the initial criterion is whether his total disability is permanent in nature. The history of his psychiatric disability reveals that it has grown progressively worse since its inception in service. For over six years prior to the unauthorized care, a total schedular rating had been in effect for the disability, and the veteran had been considered incompetent for VA purposes because of the disability, which is a strong indication that his disability is permanent. Permanency of the disability is buttressed by a VA psychiatrist's conclusions based upon an April 1991 special VA psychiatric examination in which the psychiatrist found that the veteran's psychiatric disability was severe, and that it rendered the veteran incompetent and incapable of social or industrial interaction. Accordingly, the Board finds that the veteran has a total disability, which is permanent in nature. 38 U.S.C.A. §§ 1728, 5107; 38 C.F.R. §§ 17.80, 17.89. ORDER The veteran's appeal is allowed to the extent that his entitlement to reimbursement or payment of the cost of unauthorized medical services administered from December 21 to December 23, 1990, is not precluded by his failure to satisfy the initial regulatory criterion, which authorizes indemnification against unauthorized medical services when a veteran has a permanent and total service-connected disability. REMAND In light of the foregoing decision, the veteran's entitlement to indemnification against the cost of the unauthorized medical services administered from December 21 to December 23, 1990, is dependent upon whether the two remaining criteria set forth in 38 C.F.R. § 17.80 are satisfied. Since the aforementioned criteria were not addressed by the MAS in its decisions or in the August 1991 statement of the case, the claim is remanded to the MAS for the following action: The MAS should determine whether the private medical treatment was administered, in whole or in part, in response to a medical emergency as required by 38 C.F.R. § 17.80(b) and § 17.80a, and whether a VA medical facility was feasibly available as required by 38 C.F.R. § 17.80(c) and § 17.89. If the determination is unfavorable to the veteran, a supplemental statement of the case should be sent to the veteran and to his representative. The supplemental statement of the case should set forth any evidence added to the record since the August 1991 statement of the case, any legal authority relied upon that was not previously cited, the decision, and the bases for the decision. After the supplemental statement of the case is sent, the veteran and his representative should be given the appropriate time in which to respond. Thereafter, subject to appellate procedures, the case should be returned, if appropriate, to the Board for further consideration. The purpose of this REMAND is to ensure due process of law. No action is required by the veteran until he receives further notice. 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.