Citation NR: 9804451	
Decision Date: 02/13/98		Archive Date: 02/17/98
DOCKET NO.  96-23 217	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, 
Minnesota


THE ISSUE

Entitlement to reimbursement or payment of the cost of 
unauthorized medical services received in August 1995.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

R. A. Caffery, Counsel




INTRODUCTION

The veteran served on active duty from December 1943 to 
October 1945.  

This is an appeal from 1995 decisions by the Department of 
Veterans Affairs (VA) Medical Center, Minneapolis, Minnesota, 
denying entitlement to reimbursement or payment of the 
expenses incurred in connection with treatment of the veteran 
by the Orthopedic Associates of Duluth (Peter Goldschmidt, 
M.D.), on August 16, 1995, and at the St. Luke's Hospital, 
Duluth, on August 18, 1995.  


CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends, in substance, that reimbursement or 
payment of the private medical expenses in question should be 
made by the VA, since the veteran's condition constituted a 
medical emergency, and the continuity of his treatment by his 
private physicians was very important.  Prior to the 
emergency in August 1995 he had seen several private 
physicians for problems associated with his finger.  When 
there was an immediate need to have surgery performed he 
called the county veterans' service officer and left a 
message on the answering machine.  The medical professionals 
insisted that surgery be performed two days later..  He had 
always contacted the county veterans' services officer to 
notify the originating agency.  He has asserted that his 
previous examinations had all been paid for under the fee 
basis program.  The veteran maintains that his treatment 
could have cost the VA more money if he had had to begin the 
medical evaluation process all over in the VA medical care 
system.


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 preponderance of the evidence is 
against the veteran's claim for reimbursement or payment of 
the private medical services in question.  


FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable 
disposition of the veteran's appeal has been obtained by the 
regional office.  

2.  The veteran has established service connection for 
residuals of a gunshot wound of the right thigh, rated 30 
percent disabling; a psychoneurosis, rated 30 percent 
disabling; residuals of a gunshot wound of the left shoulder 
involving brachial plexus, rated 20 percent disabling; 
residuals of a gunshot wound to the left shoulder involving 
Muscle Group III, rated 20 percent disabling; and a gunshot 
wound scar of the left index finger, rated noncompensable.  
The combined rating is 70 percent.  

3.  The veteran was seen by Peter Goldschmidt, M.D., on 
August 16, 1995, for a mucous cyst of the right long finger 
with a nail deformity.  

4.  On August 18, 1995, excision of the muscous cyst with 
debridement of distal interphalangeal joint osteophytes and 
nail bed reconstruction were performed at the St. Luke's 
Hospital.  The surgeon was Dr. Goldschmidt.  

5.  The veteran had not obtained prior authorization from the 
VA for the office visit with Dr. Goldschmidt on August 16, 
1995, and the treatment at the St. Luke's Hospital on August 
18, 1995.  

6.  At the time of the private medical services in question, 
a medical emergency so as to preclude use of available VA 
medical facilities was not present.  



CONCLUSION OF LAW

The criteria for reimbursement or payment of the expenses 
incurred in connection with treatment of the veteran by The 
Orthopedic Associates of Duluth (Peter Goldschmidt, M.D.) on 
August 16, 1995, and at the St. Luke's Hospital, Duluth, on 
August 18, 1995, have not been met.  38 U.S.C.A. §§ 17.28, 
5107 (West 1991); 38 C.F.R. § 17.120 (1997).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board notes that it has found the veteran's claim to be 
"well grounded" within the meaning of 38 U.S.C.A. § 5107(a); 
effective on and after September 1, 1989.  That is, the Board 
finds that he has presented a claim which is plausible.  The 
Board is also satisfied that all relevant facts regarding the 
claim have been properly developed.  

The record reflects that the veteran has established service 
connection for the following conditions:  Residuals of a 
gunshot wound of the right thigh, rated 30 percent disabling; 
a psychoneurosis, rated 30 percent disabling; residuals of a 
gunshot wound of the left shoulder involving brachial plexus, 
rated 20 percent disabling; residuals of a gunshot wound of 
the left shoulder involving Muscle Group III, rated 20 
percent disabling; and a gunshot wound scar of the left index 
finger, rated noncompensable.  The combined rating for these 
service-connected disabilities is 70 percent.  He has not 
been found to be totally disabled due to service connected 
disability. 

The record reflects that on August 16, 1995, the veteran was 
seen in the office of Peter Goldschmidt, M.D. for a mucous 
cyst of his right long finger with a nail deformity.  

The record further discloses that on August 18, 1995, 
excision of the mucous cyst with debridement of distal 
interphalangeal joint osteophytes and nail bed reconstruction 
was performed at the St. Luke's Hospital, Duluth, by Dr. 
Goldschmidt.  

The veteran had not obtained prior authorization from the VA 
for the above private medical services.  

In order to be entitled to reimbursement or payment for 
medical expenses incurred without prior authorization from 
the 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 nonservice-connected 
disability associated with and held to be aggravating an 
adjudicated service-connected disability, or (3) for an 
disability of a veteran who has a total disability permanent 
in nature resulting from a service-concerted disability; 
(b) that a medical emergency existed and 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. § 17.120.  

In this case, the record reflects that the private medical 
treatment in question involved a mucous cyst on the veteran's 
right long finger, a condition for which service connection 
has not been established.  However, the originating agency 
indicated in the statement of the case that the VA fee basis 
unit had been paying for ongoing treatment for the finger 
condition.  It was further indicated, however, that since the 
private medical expenses exceeded the $125 limitation on the 
fee basis identification card, and prior authorization had 
not been obtained by the VA to exceed the limit, payment of 
the claim had been denied.  The originating agency held that 
the private medical treatment had not been emergent in 
nature, and that the veteran or his local physician could 
have contacted the originating agency with regard to 
obtaining prior authorization for the surgery in question.  

The record reflects that when the veteran was seen by Dr. 
Goldschmidt on August 16, 1995, examination of the right long 
finger showed a mucous cyst with a vertical irregularity of 
the nail plate.  The veteran indicated that he had had 
surgery performed for the cyst in 1991 by another physician, 
and since that time he had noted recurrence of the cyst as 
well as a nail deformity.  Periodically, the cyst ruptured 
and clear, thick fluid exuded.  It was indicated that he had 
had no significant pain with motion, but was primarily 
bothered by the cyst as well as somewhat bothered by the nail 
deformity.  

It was recommended that he have excision of the muscous cyst 
with debridement of the osteophytes of the distal 
interphalangeal joint.  The plan was to schedule him for that 
procedure.  

On August 18, 1995, excision of the muscous cyst with 
debridement of the distal interphalangeal joint osteophytes 
and nail bed reconstruction were performed by Dr. Goldschmidt 
at the St. Luke's Hospital.  The veteran tolerated the 
procedure well and was transferred to the recovery room in 
stable condition.  

A note by Dr. Goldschmidt dated August 30, 1995, reflects 
that the veteran returned for a follow-up examination and had 
no complaints.  The incision was healing well without 
erythema, induration or any signs of infection.  The sutures 
were removed.  

In a September 1995 statement, a county veterans’ service 
officer confirmed that the veteran had left a message on his 
answering machine on September 17, 1995.  However, it was not 
until the following week that they had discussed the matter 
with the veteran.  

The evidence of record does not establish that the treatment 
in question wasfor a service connected disability, or that a 
medical emergency was present at the time of the private 
medical services in question.  Surgery for the mucous cyst of 
the veteran's right long finger was not performed until two 
days following his office visit with Dr. Goldschmidt.  Thus, 
it appears that the veteran would have had adequate time to 
travel to a VA medical facility or other Federal facility for 
the necessary treatment.  Although the veteran may have 
wished to continue treatment with his local private 
physicians who were familiar with his case, this does not 
mean that the treatment was unavailable at a VA or other 
Federal medical facility.  Notice to a county service 
officer, an agent of the veteran, is not notice to the VA.  
Accordingly, under the circumstances, favorable action in 
connection with the veteran's appeal is not warranted.  38 
U.S.C.A. § 1728; 38 C.F.R. § 17.120.  

The Board has carefully reviewed the entire record in this 
case; however, the Board does not find the evidence to be so 
evenly balanced that there is doubt as to any material issue.  
38 U.S.C.A. § 5107.  


ORDER

Entitlement to reimbursement or payment of the cost of 
unauthorized private medical services is not established.  
The appeal is denied.  



		
	ROBERT D. PHILIPP
	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.



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