Citation Nr: 9812691 Decision Date: 04/23/98 Archive Date: 05/08/98 DOCKET NO. 97-01 792 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Bay Pines, Florida THE ISSUE Entitlement to payment or reimbursement of unauthorized purchases of prescriptions on May 18, 1993; June 10, 1993; and July 12, 1993. ATTORNEY FOR THE BOARD Jonathan E. Taylor, Associate Counsel INTRODUCTION The appellant served on active duty from March 1943 to December 1944. This case comes before the Board of Veterans’ Appeals (the Board) on appeal from a November 1993 decision of the Chief, Medical Administration Service (MAS), of the Bay Pines, Florida, Department of Veterans Affairs (VA) Medical Center (VAMC). CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that reimbursement of unauthorized medical expenses incurred on May 18, 1993; June 10, 1993; and July 12, 1993, is warranted. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), 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 appellant has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim of entitlement to payment or reimbursement of unauthorized medical expenses is well grounded. FINDINGS OF FACT 1. The appellant is service-connected for a duodenal ulcer. 2. The evidence does not show that the medical expenses incurred on May 18, 1993; June 10, 1993; and July 12, 1993, were for an emergent situation. CONCLUSION OF LAW The appellant’s claim of entitlement to payment or reimbursement of unauthorized medical expenses is not well grounded. 38 U.S.C.A. §§ 1728, 5107 (West 1991); 38 C.F.R. § 17.120 (1997). REASONS AND BASES FOR FINDINGS AND CONCLUSION The law provides that “a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded.” 38 U.S.C.A. § 5107(a) (West 1991). In order to establish a “well grounded” claim, an appellant needs to provide evidence relevant to the requirements for that claim of sufficient weight to make the claim plausible or meritorious on its own and capable of substantiation. Franko v. Brown, 4 Vet. App. 502, 505 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 610-611 (1992); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). VA may reimburse veterans for medical expenses incurred in non-VA facilities where: (1) such care or services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health; (2) such care or services were rendered to a veteran in need thereof (A) for an adjudicated service-connected disability, (B) for a non service-connected disability associated with and held to be aggravating a service-connected disability, (C) for any disability of a veteran who has a total disability permanent in nature from a service-connected disability. . . . ; and (3) Department or other Federal facilities were not feasibly available, and an attempt to use them beforehand would not have been reasonable, sound, wise, or practical. 38 U.S.C.A. § 1728(a) (West 1991). The United States Court of Veterans Appeals (Court) has held that all three of these statutory requirements must be met before reimbursement may be authorized. See Hayes v. Brown, 6 Vet. App. 66, 68 (1993). The corresponding VA regulatory authority essentially tracks the above-cited statutory criteria. See 38 C.F.R. § 17.120 (1997) (formerly 38 C.F.R. § 17.80, redesignated at 61 FR 21966, May 13, 1996). Failure to satisfy any one of the three criteria listed above precludes the VA from paying unauthorized medical expenses. Hayes v. Brown, 6 Vet. App. 66, 69 (1993). Therefore, the elements of a well grounded claim of entitlement to payment or reimbursement of unauthorized medical expenses are: (1) evidence that the treatment was for a service-connected disability, (2) evidence that the treatment was for a medical emergency, and (3) evidence that federal facilities were unavailable. 38 C.F.R. § 17.120 (1997). The appellant is service-connected for a duodenal ulcer. On May 9, 1993, the appellant was hospitalized at Hollywood Medical Center for vomiting blood. The appellant was diagnosed with and treated for acute gastrointestinal bleeding secondary to ulcer, anemia secondary to gastrointestinal bleeding, peptic ulcer disease, a duodenal ulcer, and a gastric ulcer. The appellant was discharged from the medical center on May 12, 1993. The appellant was treated with Pepcid™. At discharge, the appellant’s overall condition was improved. The appellant paid for prescriptions of Pepcid™ and ferrous sulfate on May 19, 1993; June 11, 1993; and July 14, 1993, at Wal-Mart pharmacy in Miramar, Florida. According to a July 1994 report of contact with a VA pharmacist, Pepcid™ is a non-formulary prescription and, therefore, unavailable at the VAMC in Miami, Florida. There is no medical opinion of record that shows that care and services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health. As there is no medical evidence that shows that the appellant’s treatment was for an emergent condition, the appellant has not submitted evidence sufficient to constitute a plausible claim. The appellant contends that his condition was emergent. However, where a claim involves issues of medical fact, such as medical causation or medical diagnoses, competent medical evidence is required. Grottveit v. Brown, 5 Vet App. 91, 92- 93 (1993). Lay persons are not qualified to render a medical opinion concerning medical issues. Espiritu v. Derwinski, 2 Vet. App. 492, 494- 95 (1992). The appellant has not submitted competent medical evidence demonstrating that his condition was emergent when the prescriptions were filled at Wal-Mart, nor has he demonstrated that he is qualified to render medical opinions. The Board has thoroughly reviewed the claims file, but finds no evidence of a plausible claim. As competent medical evidence does not show that the prescriptions were required treatment for an emergent condition, the Board finds that the claim fails to show the elements of a well-grounded claim of entitlement to payment or reimbursement of unauthorized medical expenses. Because the appellant has not met his burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded, it must be denied. Where a veteran has not met the burden of presenting evidence of a well-grounded claim, VA has no duty to assist him any further in developing facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1997). However, where a claim is not well grounded, it is incomplete and, depending on the particular facts of the case, VA may be obligated under 38 U.S.C.A. § 5103(a) (West 1991) to advise the claimant of the evidence needed to complete his application. Robinette v. Brown, 8 Vet. App. 69, 77 (1995). In this case, however, VA has complied with this obligation in the June 1994 statement of the case. Although the MAS did not specifically state that it denied the appellant’s claim on the basis that it was not well grounded, the Board concludes that this was not prejudicial to the veteran. See Edenfield v. Brown, 8 Vet. App 384 (1995) (en banc) (where a Board decision disallows a claim on the merits and the Court finds the claim to be not well grounded, the appropriate remedy is to affirm the Board’s decision on the basis of nonprejudicial error). The Board, therefore, concludes that denying the appeal of the appellant’s claim because the claim is not well grounded is not prejudicial to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). ORDER Because it is not well grounded, the appellant’s claim of entitlement to payment or reimbursement of unauthorized medical expenses is denied. MICHAEL S. SIEGEL Acting Member, Board of Veterans’ Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), 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, 102 Stat. 4105, 4122 (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. - 2 -