BVA9500958 DOCKET NO. 93-16 289 ) DATE ) ) On appeal from a decision by the Department of Veterans Affairs Medical Center in San Antonio, Texas THE ISSUE Entitlement to payment of unauthorized medical expenses incurred from December 14 to 26, 1989, at Bexar County Hospital. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Keith W. Allen, Associate Counsel INTRODUCTION The veteran served on active duty from February 1987 to May 1989. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 1991 decision by the Department of Veterans Affairs (VA) Medical Center (VAMC) in San Antonio, Texas, which denied payment of unauthorized medical expenses incurred by the veteran from December 14 to 26, 1989 at a private hospital. The case was remanded by the Board, administratively and at the request of the veteran, in October 1994 so that documents not relevant to the appeal could be processed. After this development was completed, the case was returned to the Board in December 1994. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that VA should be responsible for payment of the medical expenses in question because he needed a heart transplant due to the severity of his service-connected heart condition. He claims that personnel at a VA hospital refused to perform the heart surgery because they believed his health was not stable enough for the operation, and asserts that they were essentially dragging their feet in putting him on the list of potential surgical candidates. He points out he was medically discharged from service because of his heart condition and that doctors in service informed him that he would need a heart transplant soon after he was discharged from service. 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 evidence supports the claim for payment of unauthorized medical expenses incurred from December 14-26, 1989, at the hospital in question. FINDINGS OF FACT 1. The veteran is service-connected, and rated 100 percent disabled, for a heart condition. 2. His heart condition deteriorated, a medical emergency existed, and from December 14 to 26, 1989, he incurred unauthorized private medical expenses in association with a heart transplant. 3. VA facilities were not feasibly available. CONCLUSION OF LAW The criteria for payment of unauthorized medical expenses incurred by the veteran from December 14 to 26, 1989, at Bexar County Hospital have 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. Factual Background The veteran is service-connected for congestive heart failure, with dilated cardiomyopathy, left ventricular mass, and chronic renal insufficiency. His disability is rated 100 percent disabling. He was discharged from service in May 1989 because of chronic heart problems, and his service medical records show that military physicians believed he would probably need to undergo a heart transplant after service. Later in May 1989, the veteran was hospitalized at the VAMC in Dallas, Texas, for elective cardiac catheterization and other heart studies and for evaluation for a heart transplant. Problems with his heart in service and the extensive treatment that he had undergone were documented. He presented with complaints of increasing heart symptoms. On clinical evaluation, his heart had a regular rhythm, with an occasional ectopic beat. He had swelling in his ankles and knees. Shortness of breath decreased with increased medication. An echocardiogram showed decreased left ventricular function with very severe global hyperkinesis and dilated left ventricular pulmonary artery and pulmonary veins. He had normal vitals with mild MR, no aortic insufficiency (AI), pulmonary infarction (PI), and moderate to severe TR. Doppler studies of the carotids were scheduled on an outpatient basis. He was also scheduled to be followed by a cardiology catheterization team. A few weeks later, in June 1989, the veteran was admitted to the VAMC in Hines, Illinois (on referral from the VAMC in Dallas) for additional studies and work-up to explore the possibility of a heart transplant. An electrocardiogram (EKG) showed right atrial enlargement, poor R-wave progression and non-specific ST-T wave changes. A chest X-ray was remarkable for cardiomegaly. While undergoing a battery of tests, he became agitated and asked that all procedures be terminated. After the veteran's symptoms increased, he consented to another trial of aggressive medical management. While still hospitalized, he had a repeat right heart catheterization in July 1989. Upon adjustment of his medical regime, including medications, he experienced marked clinical improvement, but again became agitated and asked to be transferred to the cardiac floor. A psychiatric examination was requested, and medication was prescribed. He was eventually transferred to the cardiology ward for further workup. An EKG showed heart dysfunction, but his condition was listed as stable. He asked to be discharged, declaring that he did not want a heart transplant and believing that he would never receive a new heart. He was aware of his situation, the need for continuous hospitalizations, and the consequences of his leaving the hospital against medical advice (AMA). He was discharged in July 1989, at his request, after signing release forms, despite efforts by hospital personnel to get him to change his mind. Two days later, the veteran was admitted to the emergency room of Brooke Army Medical Center (BAMC), with chief complaints of pain on the left side of his chest and productive cough with hemoptysis. He was placed on the very seriously ill list and was later admitted to the coronary care unit of the hospital, where numerous tests and studies were conducted, including a heart transplant workup. His exten-sive history was documented, and the discharge diagnoses noted multiple residuals associated therewith. A follow-up consultation in the cardiology clinic was scheduled (the veteran was to meet with the cardiology transplant secretary within three days and was to reside in a guest house near the hospital until that time). When discharged in July 1989, his condition was guarded, but hemodynamically stable. The veteran was readmitted to BAMC in August 1989 and remained hospitalized at that facility until September of that year. He complained of increased swelling in his legs and abdomen of two weeks' duration. He was originally admitted to the cardiology ward, but was transferred to the coronary care unit. It was noted that he was awaiting a heart transplant. Several medications were prescribed and continually adjusted. By September, he was transferred to the cardiology ward because his condition had sufficiently stabilized. He was discharged about one week later. His condition on discharge was listed as stable, without further episodes of congestive heart failure (CHF) noted. A follow-up appointment in the cardiology clinic was to be scheduled. In December 1989, the veteran underwent heart transplant surgery at a private hospital (Bexar County Hospital District). When admitted to the hospital, his vital signs were stable, and he was in no apparent distress. In general, he did well postoperatively. By the eleventh postoperative day (December 26th), he was ready to be discharged. He was afebrile, and his vital signs were stable. His heart had a regular rate and rhythm, with no murmurs, and he had no complaints of chest pain or shortness of breath. He was up and ambulating well. Several medications were prescribed, and he was to receive follow-up treatment at BAMC. He was seen hospitalized at BAMC one day later for an endomyocardial heart biopsy. He was discharged the following day. Subsequently dated records (those from January 1990) show that the veteran received additional treatment at a private hospital, but the expenses associated therewith are not the subject of this appeal. While hospitalized, he underwent Immunoglobulin therapy to combat rejection of his recently transplanted heart. 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. In order to be entitled to payment or reimbursement for medical 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. It is clear that the expenses incurred by the veteran at the hospital in question were the result of treatment for his service-connected heart condition, for which he is rated 100 percent disabled. Thus, he satisfies the first criterion of the above-cited VA law and regulation. However, the other remaining criteria must also be met for VA to approve payment of the expenses in question. The veteran argues that the events leading up to his December 1989 surgery were such that he was forced to obtain the surgery at a private facility because either VA doctors refused to perform the surgery or were lackluster in getting him scheduled on the waiting list. However, the record suggests otherwise, indicating that in the months leading up to the time that he had his operation, he was twice hospitalized at VA hospitals, in Dallas, Texas and Hines, Illinois. These hospitalizations were necessary so that tests could be completed and judgment made as to whether he should be scheduled for surgery. There is little doubt that the veteran's medical condition was serious and potentially life-threatening. In such circumstances, room exists to call the situation a "medical emergency." Apparently, a donor heart became available, and VA facilities were not "feasibly available" under the circumstances. In reaching my decision, reasonable doubt has been resolved in the veteran's favor. See 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER The claim for payment of the unauthorized medical expenses incurred from December 14 to 26, 1989, at Bexar County Hospital is allowed. 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.