Zimick v. West

11 Vet. App. 45, 1998 U.S. Vet. App. LEXIS 75, 1998 WL 31814
United States Court of Appeals for Veterans Claims·Decided January 29, 1998·No. No. 94-1125·Published·Cited by 34 cases

Opinion

FARLEY, Judge:

This is an appeal from an August 19, 1994, decision of the Board of Veterans’ Appeals (BVA or Board) which determined that the criteria for payment of private medical expenses incurred while the appellant was hospitalized at a non-VA facility had not been met. This appeal is timely and the Court has jurisdiction pursuant to 38 U.S.C. § 7252(a). For the reasons that follow, the Court will affirm the Board’s decision.

I. FACTUAL BACKGROUND

The appellant, Patrick Zimick, is a veteran of the U.S. Army who served on active duty from October 1966 to October 1968. Record (R.) at 18. He has no adjudicated service-connected disabilities. On March 14, 1990, the appellant went to the emergency room of Northfield Hospital in Northfield, Minnesota, after partially amputating his right index finger and sustaining multiple lacerations to three other fingers on his right hand. R. at 36, 51. After discussing treatment options and learning that the appellant was a veteran, the emergency room doctor, Dr. Behrens, telephoned the nearest VA Medical Center (VAMC) to seek admission for the appellant. The head surgeon at the VAMC, Dr. Stepha-nian, reportedly stated that the appellant should not come to the VA facility because no one there could perform the required micro[47] surgery. R. at 21. Rather, Dr. Stephanian is said to have told Dr. Behrens to send the appellant to Hennepin County Medical Center (HCMC) and that the surgery could be performed there at VA expense. R. at 21, 36. Relying on the statements of Dr. Ste-phanian, the appellant chose to go to HCMC and to undergo microsurgery to save his finger rather than having it surgically amputated. R. at 51. A representative from the VAMC contacted HCMC by telephone the following day regarding the appellant’s surgery. R. at 23. The appellant was discharged from HCMC on March 17,1990. R. at 25.

A Report of Contact form dated March 14, 1990, and signed by Steven Sawyer, a VA medical administrative assistant, confirms that Dr. Stephanian told Dr. Behrens that VA would pay for the appellant’s surgery at HCMC. R. at 21. However, the report also suggests that “the doctor” was told by Mr. Sawyer that unless the appellant was first evaluated at the VAMC, VA might not cover the expenses. Id. The report is not clear as to whether “the doctor” refers to Dr. Beh-rens or Dr. Stephanian. According to Harold May, Chief of the VA Medical Administration Service, “when these calls are made, the administrative person, Mr. Sawyer[,] and the physician are on the line at the same time.” R. at 60. The reference of Mr. May was not case specific, however, and there is no evidence of record which indicates that the appellant or Dr. Behrens was aware of Mr. Sawyer’s statements. In fact, both individuals have indicated that they were informed that VA would pay. R. at 36, 58. On a subsequent Report of Contact form initiated over two years later, Mr. Sawyer stated that he did not recollect the conversation referenced in the March 1990 Report of Contact. R. at 67. Despite not having a recollection of the conversation, Mr. Sawyer was “positive that he was very [explicit] and both the non-VA and VA physician were aware that the VA would not authorize care for [the appellant].” Id.

In March 1990 and again in October 1990, HCMC and the appellant were notified that VA could not pay for the expenses incurred by the appellant because the condition for which the appellant had received treatment was not service connected. R. at 32, 34. The October notice stated that a Notice of Appellate Rights had been enclosed. See R. at 34. The appellant thereafter filed a Notice of Disagreement (NOD) with the VAMC, and a Statement of the Case was issued. R. at 47-49; see R. at 38. Before the administrative appeal proceeded to the BVA, a hearing was held in June 1992 and the appellant described the events surrounding his emergency treatment. R. at 56-65. The appellant’s wife testified that on March 14, 1990, she spoke to the VA medical administrative assistant and, after being asked a series of financial questions, was told that VA would pay for the appellant’s medical treatment at HCMC. R. at 62. The hearing officer commented that “[w]e have every authority under the administrative error to cover the cost incurred to you because of our error. That’s the issue that we have to discuss and make a decision on.” R. at 65. Although the hearing officer presumably declined to obligate VA to cover the expenses pursuant to an administrative error, the record on appeal (ROA) does not contain that decision. Val and Dean Naber, neighbors of the appellant who went to the emergency room with the appellant’s wife and who purportedly overheard conversations with the emergency room doctor, later submitted statements verifying that Dr. Behrens had told the appellant and his wife that VA would pay for the appellant’s surgery “but that VA would not pay for the ambulance ride” to HCMC. R. at 74.

In the decision on appeal, the Board found that the appellant had not received prior authorization for admission to a non-VA facility at VA expense. R. at 8. The Board concluded that because there had been a conference call between Dr. Stephanian, Dr. Behrens, and Mr. Sawyer, the “contradictory positions of [Dr. Stephanian] and the Medical Administrative Assistant cannot reasonably be interpreted as authorizing private treatment at VA expense.” Id. The Board thus concluded that the appellant had not met the requirements of 38 U.S.C. § 1703, which authorizes VA to contract with non-VA facilities when a VA facility is not capable of providing the necessary services. The Board also [48] found that the appellant was not eligible for reimbursement for unauthorized medical expenses incurred at a private hospital under 38 U.S.C. § 1728. R. at 9. This appeal followed.

II. JURISDICTION

The Secretary suggested during oral argument in this case that the Court did not have jurisdiction to review part and perhaps all of the appellant’s claim. The Court will address these threshold issues before proceeding to the merits of this appeal.

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Zimick v. West, 11 Vet. App. 45, 1998 U.S. Vet. App. LEXIS 75, 1998 WL 31814 (Cal. 1998).

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