Citation NR: 9700890 Decision Date: 01/13/97 Archive Date: 02/03/97 DOCKET NO. 95-40 568 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to payment of unauthorized medical expenses incurred on April 28, 1995, at Lutheran Hospital, Wheat Ridge, Colorado. ATTORNEY FOR THE BOARD Keith L. Salas, Associate Counsel INTRODUCTION The veteran served on active duty from February 1956 to December 1957. This case is before the Board on appeal from a June 1995, determination by the Department of Veterans Affairs (VA) Medical Center (VAMC), in Denver Colorado, denying the veteran’s claim for payment of unauthorized medical expenses incurred on April 28, 1995, at Lutheran Hospital, Wheat Ridge, Colorado. In written statements submitted during the course of his appeal, the veteran asserted that the symptoms precipitating the veteran’s hospitalization (and hence the incurrence of the unauthorized medical expenses) were caused by a reaction to medications prescribed by the VA. A claim of this type may be governed by the provisions of 38 U.S.C.A. § 1151 (West 1991). However, as this matter has not been developed or certified for appellate consideration by the Board, it is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that VA should be responsible for payment of the unauthorized medical expenses that he incurred on April 28, 1995, at Lutheran Hospital, Wheat Ridge, Colorado because his emergency care was necessitated as the result of an adverse reaction to medications prescribed by VA doctors. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1996), has reviewed and considered all of the evidence and material of record in the veteran's claims file(s). 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 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 veteran has not submitted a claim upon which relief can be granted as a matter of law. FINDING OF FACT The veteran does not have an adjudicated service-connected disability. CONCLUSION OF LAW The veteran has not submitted a claim upon which relief can be granted. 38 U.S.C.A. § 1728 (West 1991); 38 C.F.R. § 17.80 (1995). REASONS AND BASES FOR FINDING AND CONCLUSION The relevant facts may be briefly summarized. In a written statement, the veteran, who is not service connected for any disability, asserts that he was being treated by the VA for high blood pressure with a medication called benazepril. He related that on April 28, 1995 while at work he passed out. When he regained consciousness, he called for emergency help. He asserts that he asked the emergency medical personnel who responded to his call to be taken to a VA medical center, but was told that they could not do so. According to the veteran they told him that the VA would reimburse expenses for treatment at a private hospital. When he arrived at Lutheran Hospital, he was told that he needed to go to a VA hospital and that he would be transferred when stable. He was administered care including an IV, and tests were taken. The veteran asserts that the attending doctor called the local VA Hospital and was told that there was no room. The veteran informed the doctor that he had no insurance and could not afford to stay. He was released and told to go to the VA Hospital emergency room if he didn’t feel better. The veteran asserts that both a doctor at Lutheran, and the VA acknowledge that the benazepril was likely the cause of his passing out. A June 1995 physician’s statement indicates that the veteran was taken to Lutheran Hospital after a syncopal episode which “may very well have been” related to blood pressure medication prescribed by the VAMC clinic. The doctor noted that no etiology was found for the episode by the doctors at Lutheran; and that the doctor’s own holter testing revealed no significant findings. The threshold question to be answered in this case is whether the veteran has presented a claim upon which relief can be granted. See Sabonis v. Brown, 6 Vet.App. 426 (1994). If he has not done so, his appeal must, as a matter of law, be denied. The veteran does not assert, nor does the evidence suggest, that he received authorization from VA to receive treatment at Lutheran Hospital. Under 38 U.S.C.A. § 1728 and 38 C.F.R. § 17.80, in order to be entitled to payment of unauthorized medical expenses incurred at a private hospital, all of the following must be shown: (a) The treatment rendered 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. Due consideration has been given to all of the evidence of record including the statement of the veteran and of his doctor. The dispositive consideration,however, is the absence of a service-connected disability. The veteran does not meet a basic eligibility requirement because he does not satisfy the first criterion of 38 C.F.R. § 17.80 requiring service connection for some disability. Therefore, because the veteran has failed to present a claim upon which relief can be granted, his appeal must be denied as a matter of law. ORDER The claim for payment of the unauthorized medical expenses incurred on April 28, 1995, at Lutheran Hospital, Wheat Ridge, Colorado is denied. JOHN E. ORMOND, JR. Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (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 & Supp. 1996), 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 -