Citation Nr: 0119514	
Decision Date: 07/27/01    Archive Date: 07/31/01

DOCKET NO.  00-17 058	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Manchester, 
New Hampshire


THE ISSUE

Entitlement to prior VA authorization for payment of the cost 
of gender alteration surgery.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M.S. Lane, Associate Counsel



INTRODUCTION

The veteran served on active duty from December 1969 to 
December 1972.

This matter comes to the Board of Veterans' Appeals (Board) 
on appeal from a May 2000 decision by the Department of 
Veterans Affairs (VA) Medical Center (MC), which denied the 
veteran's claim to entitlement to prior VA authorization for 
payment of the cost of gender alteration surgery.  The record 
reflects that the veteran subsequently perfected a timely 
appeal regarding that decision.

In a statement submitted in March 2001, the veteran's 
representative submitted medical evidence showing that the 
veteran had recently undergone gender alteration surgery at a 
private medical facility.  Therefore, the Board has 
considered the possibility that the issue on appeal has been 
rendered moot, or that the issue should now more 
appropriately be characterized as a claim for reimbursement 
of medical expenses incurred as a result of gender alteration 
surgery.  However, the Board is of the opinion that the claim 
has not been rendered moot, as a grant of prior authorization 
to obtain such surgery at VA expense would likely result in 
retroactive payment of the cost of the veteran's surgery.

Furthermore, the Board also believes that recharacterizing 
the claim for authorization as a claim for reimbursement 
would be inappropriate, as a claim for reimbursement 
constitutes a distinct claim, involving the application of 
separate statutory and regulatory criteria, which must be 
separately appealed.  Because the veteran has consistently 
challenged the RO's denial of prior authorization for her 
surgery, and because the issue of reimbursement for such 
surgery has never been raised by the veteran or addressed by 
the RO, the Board finds that the issue on appeal remains 
appropriately characterized as stated on the first page of 
this decision.

In her Substantive Appeal (VA Form 9) submitted in June 2000, 
the veteran requested a personal hearing before a member of 
the Board in Washington, D.C.  The requested hearing was 
subsequently scheduled, and she was notified of the date and 
time of her personal hearing in a March 2001 letter from the 
Board.  However, she failed to report for her hearing.  To 
the Board's knowledge, the veteran has offered no explanation 
as to why she was unable to appear and has since made no 
request for another hearing.  Accordingly, the Board will 
proceed to a decision on this appeal as if the hearing 
request had been withdrawn. 


FINDINGS OF FACT

1.  The veteran has service connection in effect for post-
traumatic stress disorder, which has been evaluated as 
permanently and totally disabling.  Service connection is 
also in effect for tinnitus, which has been evaluated as 10 
percent disabling; Lyme arthritis, which has been evaluated 
as noncompensable; and bilateral hearing loss, which has been 
evaluated as noncompensable.

2.  VA is prohibited by law from providing gender alteration 
surgery.


CONCLUSION OF LAW

The veteran is not entitled to VA provision of, or payment 
for, gender alteration surgery, because VA provision of such 
medical services is barred by law.  38 U.S.C.A. §§ 1703, 1710 
(West 1991 & Supp. 2000); 38 C.F.R. § 17.38(c)(4) (2000).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran performed military service as a man.  The veteran 
later initiated this claim and appeal, seeking to have VA 
authorize payment of the cost of surgery to transform the 
veteran's physical sexual characteristics from male to 
female.  As mentioned in the Introduction, above, during the 
pendency of the appeal, the veteran underwent the surgery in 
question.  Accordingly, the Board will refer to the veteran 
as a female throughout this decision.

The veteran sought authorization to undergo male-to-female 
gender alteration surgery at VA expense.  She essentially 
contended that such surgery would improve her psychiatric 
health, and that VA should pay for such surgery because she 
has been granted a permanent and total disability rating for 
her service-connected post-traumatic stress disorder (PTSD) 
which, by law, confers eligibility for hospital care and 
medical services.  In support of her claim, she submitted 
statements from several health care professionals who 
believed that it would be beneficial to the veteran's 
psychiatric health to undergo gender alteration surgery.  As 
noted above, the operation has been accomplished, and the 
Board is treating this appeal as still seeking authorization 
for payment of the cost of the now-completed surgery.

The law provides that, in connection with its statutory 
obligation to provide medical services to veterans, VA may 
contract for private hospital care in certain limited 
circumstances, including cases where a medical emergency 
exists.  Pursuant to 38 U.S.C.A. § 1703(a), the Secretary may 
contract with non-VA facilities in order to furnish medical 
care and services, either on a group or an individual basis, 
for any disability of a veteran who has a total disability 
permanent in nature from a service-connected disability.  38 
U.S.C.A. § 1703(a); 38 C.F.R. § 17.52 (2000).  Such a 
contract is permitted only when VA facilities are found to be 
incapable of furnishing economical hospital care or medical 
services because (1) the VA facility is found to be 
geographically inaccessible to the veteran, or (2) the VA 
facility is not capable of furnishing the care of services 
required by the veteran.  38 U.S.C.A. § 1703(a); 38 C.F.R. § 
17.52.

Pursuant to 38 U.S.C.A. § 1703(a), when VA facilities are not 
capable of furnishing the care or services required, the 
Secretary, as authorized in 38 U.S.C.A. § 1710, may also 
contract with non-VA facilities in order to furnish hospital 
care or medical services for the treatment of medical 
emergencies which pose a serious threat to the life or health 
of a veteran receiving medical services in a VA facility 
until such time following the furnishing of care in the non-
VA facility as the veteran can be safely transferred to a VA 
facility.  38 U.S.C. § 1703(a)(3); 38 C.F.R. § 17.52 (2000) 
(formerly 38 C.F.R. § 17.50b).

The admission of a veteran to a non-VA hospital at the 
expense of VA must be authorized in advance.  38 C.F.R. § 
17.54 (2000) (formerly 38 C.F.R. § 17.50d).  See Malone v. 
Gober, 10 Vet. App. 539, 541 (1997); see also VAOPGCPREC 1-95 
at 9 (Mar. 31, 1995) ("Authorization in advance is essential 
to any determination as to whether the Department is or is 
not going to furnish the contract care.").  In the case of 
an emergency that existed at the time of admission, an 
authorization may be deemed a prior authorization if an 
application is made to VA within 72 hours after the hour of 
admission.  38 C.F.R. § 17.54 (2000).

The Board observes that, in Meakin v. West, 11 Vet. App. 183 
(1998), the United States Court of Veterans Appeals for 
Veterans Claims (Court) held that a determination relative to 
a claimant's eligibility to authorization for non-VA medical 
care was a matter within the Board's jurisdiction.  In 
Meakin, the Court held that, in determining whether a 
claimant would be entitled to non-VA outpatient medical care, 
it must be established not only that the applicant is a 
veteran and that he or she seeks treatment for a service-
connected disability, but also that VA facilities are either 
(1) geographically inaccessible, or (2) not capable of 
providing the care or services that the veteran requires.  
With regard to the latter criterion, the Court held that the 
determination of whether a VA facility was capable of 
furnishing specific care or services did not involve a 
medical determination, unlike the question of the "need for 
and appropriateness of specific types of medical care and 
treatment," which is not within the jurisdiction of the 
Board.  See 38 C.F.R. § 20.101(b).

The Court in Meakin held that an administrative determination 
must first be obtained under 38 U.S.C.A. § 1703, as to what 
specific types of care, services, or treatment are required, 
before a decision can be made as to whether a VA facility can 
provide those services.  The Court further held that, under 
the plain meaning of 38 U.S.C.A. § 1703(a), the issue of 
authorization for fee basis medical treatment (i.e., whether 
a contract should be let) does not arise until it is shown 
that VA facilities are geographically inaccessible or 
incapable of providing the required medical care.  See Meakin 
v. West, supra, at 186.

Thus, the Court in Meakin held that a determination of 
whether a VA facility is capable of furnishing specific care 
or services is a question of eligibility, and does not 
involve a medical determination.  The Court further held that 
an administrative determination must first be obtained under 
38 U.S.C.A. § 1703 as to what specific types of care, 
services, or treatment are required before a decision can be 
made as to whether a VA facility can provide those services.

In a November 1997 rating decision, the RO found that the 
veteran was permanently and totally disabled as a result of 
her service-connected PTSD, effective May 1997.  Thus, the 
veteran would normally be eligible to receive authorization 
for care from non-VA facilities for any disability as of May 
1997 if (1) VA facilities are found to be geographically 
inaccessible to the veteran, or (2) VA facilities are not 
capable of furnishing the care or services required by the 
veteran.  38 U.S.C.A. § 1703(a); 38 C.F.R. § 17.52.  However, 
in this case, the Board finds that it need not address these 
criteria because, under 38 C.F.R. § 17.38(c)(4), VA is 
expressly precluded from providing gender alteration services 
to veterans.  The Board notes that this regulation, as 
indicated in its title, defines the "medical benefits 
package" which VA provides to veterans.  Along with an 
enumeration of the services which are considered basic care 
and preventative care, the regulation specifically excludes 
gender alteration from the services which may be provided to 
veterans.  Id.  Thus, even assuming that the VA medical 
facility closest to the veteran is both geographically 
inaccessible and incapable of providing gender alteration 
surgery, VA is still precluded from paying for the veteran's 
operation.  

The Board notes that the veteran has raised several arguments 
in support of her claim.  First, she asserts that gender 
alteration surgery constitutes reconstructive (plastic) 
surgery, which is permitted under regulations and routinely 
practiced in accordance with Veterans Health Administration 
(VHA) policy.  In this regard, the Board notes that 38 C.F.R. 
§ 17.38(a)(1)(x) (2000) does permit reconstructive surgery 
required as a result of disease or trauma, but not cosmetic 
surgery that is not medically necessary.  However, even 
assuming for the purposes of this decision that the veteran's 
gender alteration surgery was required as a result of disease 
or trauma, as discussed above, 38 C.F.R. § 17.38(c)(4) 
specifically prohibits VA from providing gender alteration 
treatment under any circumstances.  Thus, it is clear, from 
reading 38 C.F.R. § 17.38 in its entirety, that gender 
alteration surgery is considered to be distinct from plastic 
or reconstructive surgery under the law.  Similarly, the 
Board notes that the VHA policy provisions cited by the 
veteran function in accordance with this regulation, by 
allowing plastic and reconstructive surgery when necessary 
for the purpose of improving physical or mental health, but 
specifically prohibiting transsexual surgery from being 
performed under any circumstances at a VA medical center or 
under VA auspices.  VHA Policy Manual, M-2, Part XIV, paras 
11.01-11.02 and 12.01-12.03.

The record reflects that the veteran has also cited to a 
number of State law cases in support of her claim.  
Specifically, she has cited to two California cases, G.B. v. 
Lackner, 80 Cal. App. 3d 64 (1978), and J.D. v. Lackner, 80 
Cal. Rep. 3d 90 (1978), in which the First Appellate District 
of the California Court of Appeal determined that the 
transsexual surgery was a medically reasonable and necessary 
treatment for which the appellants were entitled to receive 
payment under the State's Medi-Cal program, which was 
established under the Social Security Act.  In addition, the 
veteran also cited to Doe v. State of Minnesota, 257 N.W.2d 
816 (1977), in which the Supreme Court of Minnesota 
determined that the total exclusion of transsexual surgery 
from eligibility for medical assistance employed by the State 
welfare department was void, and that the state must consider 
such treatment on a case-by-case basis to determine the 
medical necessity of the procedure.  Further, she cited to 
Rush v. Parham, 440 F. Supp. 383 (1977), in which the United 
States District Court for the Northern District of Georgia 
determined that a decision by the Georgia State Medicaid Plan 
was invalid, insofar as it irrefutably denied Medicaid 
benefits for transsexual surgery, as a violation of the 
plaintiff's federally afforded rights.  The Board notes that 
this case was reversed and remanded in Rush v. Parham, 625 
F.2d 1150 (1980), on the basis that the State should have 
been permitted to prove that a ban existed against making 
payments for experimental treatment, such as transsexual 
surgery, or that transsexual surgery was provided in the 
appropriate cases.  

In essence, the veteran appears to be offering these cases in 
support of her contention that the Secretary acted 
arbitrarily and unreasonably by producing a regulation that 
prohibits VA from providing gender alteration surgery.  It 
further appears that she has also cited these cases in 
support of her contention that the Secretary exceeded his 
authority in enacting regulations by prohibiting gender 
alteration surgery under 38 C.F.R. § 17.38, when no such 
specific prohibition exists in statute.  

As the Court stated in Malone, supra, 10 Vet. App. at 545, 
"Even where a matter is left to the discretion of the 
Secretary by statute, the Secretary would still be bound by 
any limitations placed upon the exercise of that discretion 
by regulation, and the Secretary's compliance with such 
regulatory criteria is subject to judicial review."  Because 
the Board is bound in its decisions by the regulations of the 
Department and the instructions of the Secretary, we must 
conclude that VA is prohibited from performing or paying for 
gender alteration surgery.  38 U.S.C.A. § 7104(c)(West 1991 & 
Supp. 2000).  

The Board notes that it is sympathetic to the veteran's 
frustrations regarding the exclusion of gender alteration 
surgery from the medical services provided by VA.  However, 
the Board finds the case law cited by the veteran, none of 
which deals with benefits or services administered by VA, to 
be neither controlling nor persuasive in this case.  As 
discussed in detail above, gender alteration surgery is 
specifically excluded from the "medical benefits package" 
set forth in 38 C.F.R. § 17.38.  The "medical benefits 
package" was intended by the Secretary to be an explanation 
of the types of medical care provided by VA on the basis that 
such care has been determined by appropriate healthcare 
professionals to be needed to promote, preserve, or restore 
the health of an individual, in accordance with generally 
accepted standards of medical practice.  This regulation was 
issued pursuant to the Secretary's authority to provide 
medical care as needed.  See 63 Fed. Reg. 37,299 (July 10, 
1998); see also 64 Fed. Reg. 54,207 (Oct. 6, 1999).

The Board recognizes that the "medical benefits package" 
set forth in 38 C.F.R. § 17.38 could be read to refer only to 
those services that will be provided directly by VA 
facilities, and not necessarily those that will be paid for 
by VA on a fee-basis at private facilities.  Thus, the 
prohibition against providing gender alteration services 
could conceivably be interpreted to only refer to VA 
employees actually performing such services, and not to VA 
paying for some other facility to provide for such services.  
However, the Board believes that such a reading of 38 C.F.R. 
§ 17.38 would be erroneous.  As noted above, the Secretary is 
permitted to contract with non-VA facilities in order to 
furnish medical care and services only when VA facilities are 
found to be incapable of furnishing economical hospital care 
or medical services because the VA facility is found to be 
geographically inaccessible to the veteran, or because the VA 
facility is not capable of furnishing the care or services 
required by the veteran.  38 U.S.C.A. § 1703(a); 38 C.F.R. § 
17.52.

Thus, if the "medical benefits package" set forth in 
38 C.F.R. § 17.38 were to be read as referring only to VA 
actually performing those services, rather than to VA paying 
for others to perform those services, then a separate class 
of medical benefits would be created, which VA could pay 
others to perform even if its own facilities were fully 
capable of providing such services.  Such a result would 
clearly contradict the provisions of 38 U.S.C.A. § 1703(a), 
which allows the Secretary to contract for non-VA facilities 
to perform medical services only when VA facilities or either 
geographically inaccessible or incapable of doing so.  
Accordingly, the Board believes that the prohibitions 
regarding certain types of medical services set forth in 
38 C.F.R. § 17.38 apply both to VA employees actually 
performing such services, and to VA paying others to perform 
such services outside the VA health care setting.

In summary, for the reasons and bases expressed above, the 
Board concludes that the veteran's claim of entitlement to 
prior authorization for payment of the cost of gender 
alteration surgery is precluded as a matter of law.  Because 
the law, and not the facts, is dispositive of the issue, the 
appellant has failed to state a claim upon which relief may 
be granted, and, as a matter of law, the claim must be 
denied.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).

Additional matters

During the pendency of this appeal, the President signed into 
law the Veterans Claims Assistance Act of 2000 (VCAA), which 
amended and clarified the law as to VA's obligation to 
provide notice and assistance to claimants seeking benefits.  
The new statute specifies that the Secretary shall make 
reasonable efforts to assist the claimant in obtaining 
evidence necessary to substantiate a claim for benefits, 
unless no reasonable possibility exists that such assistance 
would aid in substantiating the claim.  Public Law No. 106-
475, § 3(a), 114 Stat. 2096, 2097-98 (2000) (to be codified 
at 38 U.S.C. § 5103A).  This change in the law is applicable 
to all claims filed on or after the date of enactment of the 
VCAA, or filed before the date of enactment and not yet final 
as of that date.  VCAA § 7(a), 114 Stat. 2096, 2099-2100 
(2000).  See generally Holliday v. Principi, 14 Vet. App. 280 
(2001); see also Karnas v. Derwinski, 1 Vet. App. 308 (1991).

In this instance, the veteran's claim was denied on the basis 
that VA provision of, or payment for, gender alteration 
surgery is prohibited by law.  Under such circumstances, the 
Board finds that further development pursuant to the 
provisions of the VCAA is not warranted, as no reasonable 
possibility exists that such assistance would aid in 
substantiating the veteran's claim.  VCAA § 3(a), 114 Stat. 
2096, 2097-98 (2000) (to be codified at 38 U.S.C. § 5103A).  
Accordingly, the Board finds that we may proceed to decide 
this matter without prejudice to the claimant.  See Bernard 
v. Brown, 4 Vet. App. 384 (1993).  In addition, the Board 
finds that no useful purpose would be served in remanding 
this matter for further development.  Such a remand would 
result in unnecessarily imposing additional burdens on VA, 
with no benefit flowing to the appellant.  The Court of 
Appeals for Veterans Claims has held that such remands are to 
be avoided.  See Winters v. West, 12 Vet. App. 203 (1999) (en 
banc), vacated on other grounds sub nom. Winters v. Gober, 
219 F.3d 1375 (Fed. Cir. 2000); Soyini v. Derwinski, 1 Vet. 
App. 540, 546 (1991); Sabonis v. Brown, supra.


ORDER

The veteran's claim of entitlement to prior VA authorization 
for payment of the cost of gender alteration surgery is 
denied2.




		
	ANDREW J. MULLEN
	Member, Board of Veterans' Appeals