Citation Nr: 0003562 Decision Date: 02/10/00 Archive Date: 02/15/00 DOCKET NO. 95-25 288 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Medical Center in Muskogee, Oklahoma THE ISSUE Entitlement to payment or reimbursement by VA in connection with unauthorized medical services rendered the veteran on March 29, 1995, at Eastern Oklahoma Medical Center. (The issue of entitlement to service connection, to include on a secondary basis, for a seizure disorder is the subject of a separate disposition by the Board of Veterans' Appeals.) ATTORNEY FOR THE BOARD Michael P. Vander Meer, Counsel INTRODUCTION The veteran served on active duty from January 1977 to July 1980 and from October 1981 to September 1992. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 1995 decision of the Medical Administration Service of the VA Medical Center in Muskogee, Oklahoma. FINDING OF FACT Although the unauthorized medical treatment rendered the veteran at Eastern Oklahoma Medical Center on March 29, 1995, was in response to a service-connected disability, it was not of an emergent nature. CONCLUSION OF LAW The criteria for entitlement to payment or reimbursement by VA for expenses incurred in connection with unauthorized medical treatment rendered the veteran at Eastern Oklahoma Medical Center on March 29, 1995, have not been met. 38 U.S.C.A. §§ 1728, 5107 (West 1991); 38 C.F.R. § 17.120 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the Board finds that this claim is plausible. The Board is also satisfied that all relevant facts have been properly developed, and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). Under the law, payment or reimbursement by VA for expenses incurred in connection with unauthorized medical treatment is warranted if (1) the treatment is rendered in response to an adjudicated service-connected disability, for nonservice- connected disability associated with and held to be aggravating of an adjudicated service-connected disability, or for any disability of a veteran who has a total disability permanent in nature resulting from a service-connected disability; (2) the unauthorized treatment was rendered in a medical emergency of such nature that delay would have been hazardous to life or health; and (3) that a VA facility was not feasibly available, and an attempt to use it 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. § 17.120. The veteran asserts that her husband took her to Eastern Oklahoma Medical Center (EOMC) when she was experiencing a seizure on March 29, 1995. She elaborates that her husband knew that she had been taking medication for a seizure disorder and that he knew that "he himself was not medically qualified to" render the veteran assistance. She adds that the reason her husband took her to EOMC was because "he felt that if he drove [the veteran] to Muskogee it could have put [her] life in grave danger". In this regard, the record reflects that the veteran presented at EOMC on March 29, 1995, with a complaint of experiencing, since "2 pm" that afternoon, problems including left-sided weakness and a headache. The veteran indicated that she had recently undergone tests including a CT scan under VA auspices. On physical examination, the veteran was in no acute distress. She was discharged, in "stable" condition, pursuant to a diagnosis of "headache". It was noted that the veteran would be seen by a VA physician the following day. The record reflects that service connection had been in effect since 1992 for postoperative removal of eosinophilic granuloma, right skull, with headaches and right sided neck pain. Thus, in considering the veteran's claim for payment or reimbursement by VA for expenses incurred in connection with unauthorized medical treatment rendered her at EOMC on March 29, 1995, the Board would observe at the outset that headaches had long been an adjudicated aspect of the veteran's service-connected postoperative removal of eosinophilic granuloma, right skull. Given such consideration, the Board is satisfied that item "(1)" of the pertinent criteria set forth above is satisfied. As to whether, however, item "(2)" set forth hereinabove, bearing on whether the unauthorized treatment was rendered in a medical emergency of such nature that delay would have been hazardous to the veteran's life or health, is satisfied, the Board is of the view that it is not. In this regard, the lone intimation of a medically emergent circumstance is the veteran's assertion that the reason her husband took her to EOMC was because 'he felt that if he drove [the veteran] to Muskogee it could have put [her] life in grave danger'. However, while the Board is sensitive to the veteran's assertion in this regard, it would respectfully point out that her husband, as a lay person, is not competent to provide an opinion which requires medical expertise. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Given such observation, and without other evidence that the veteran (who was free of acute distress when examined at EOMC) presented to EOMC under emergent circumstances, the Board is readily persuaded that the circumstances incident to the veteran's presentation to EOMC cannot be said to have been truly emergent. In view of the Board's determination that one aspect [i.e., item '(2)'] of the requisite provisions of 38 U.S.C.A. § 1728 set forth above has not been satisfied, and inasmuch as each of the three above-cited requirements incident to such legislation must be satisfied before payment or reimbursement by VA pursuant to the same is warranted, see Zimick v. West, 11 Vet. App. 45, 49 (1998), the Board is constrained to conclude that payment or reimbursement by VA in connection with unauthorized medical services rendered the veteran on March 29, 1995, at EOMC, is not in order. Such claim is, therefore, denied. 38 U.S.C.A. §§ 1728, 5107; 38 C.F.R. § 17.120. ORDER Payment or reimbursement by VA for expenses incurred in connection with unauthorized medical treatment rendered the veteran on March 29, 1995, at Eastern Oklahoma Medical Center, is denied. F. JUDGE FLOWERS Member, Board of Veterans' Appeals