*1
—
-,
00-7122, 2002
No.
WL
Assis
F.3d
re
Claims
to In
Veterans
pursuant
2002)
(Fed.Cir.
20,
Dy
2000,
4-00,
May
and
No.
Order
Act
Misc.
tance
of
1377,
(Nov.
2000),
13,
Principi,
287 F.3d
which ment
and more than weeks 4-00, Court re No. Mise. Order captioned as pleading the veteran’s
ceived pursuant to the
a motion for remand above, this briefing noted As
VCAA. for months when had been closed
case pleading. received the veteran’s the Court BELLEZZA, Appellant, Frank L. widely Abra- epigram An attributed in this case: Lincoln is ham Anthony PRINCIPI, J. you if many legs dog does a How Affairs, Appellee. Veterans call a Four. You can leg? count his tail as to, it doesn’t leg you a tail a if want but 99-1038. No. most recent leg. it a The veteran’s make States Court of United motion, a pleading, although captioned as for Veterans Claims. brief, substance, is, supplemental Nor did he has filed out time. Argued Feb. brief or supplemental file the veteran 4, 2002. June Decided addressing applicability of motion permitted under the time during VCAA Therefore, No. 4-00.
Mise. Order cap- accept pleading should not remand. as a motion for
tioned analysis notwithstanding,
The above VCAA
issue of remand by the U.S. recently been addressed Appeals for Federal Circuit
Court of
(Federal Circuit) Principi, in Bernklau *2 Counsel; Carolyn
Assistant General F. Washington, Deputy Assistant General Counsel; Allyn Engelstein, L. all of D.C., Washington,. pleadings were on the appellee. for the KRAMER, Judge, Before Chief GREENE, HOLDAWAY and Judges. HOLDAWAY, Judge: Bellezza, appellant, Frank L. ap- peals 23, 1999, February decision of the (Board) Veterans’ he was not entitled to payment or reimbursement VA for the previously cost of unauthorized medical (that is, services not au- services they per- thorized VA before were veteran) on formed incurred con- nection with treatment he received at Regional Southwest Florida Medical Cen- (Southwest Florida) ter from September (R.) 1995. Record 7. The appellant and the have filed briefs, and appellant a reply filed brief. This appeal timely, and the jurisdiction Court has to 38 7252(a) 7266(a). For the follow, reasons the Court will vacate the Board’s decision and remand the claim.
I. BACKGROUND appellant duty served on active the U.S. armed forces from February 1966 January until 1968. He was later awarded for, alia, service connection anxiety inter neurosis, and was rated 100% disabled at pertinent all appeal. times R. September 10. On was Hospital admitted to North Collier (North Collier), where he was treated Smith, Ronald L. D.C., of Washington, “[ajeute myocardial inferior wall infarc- was on the pleadings for the appellant. tion.” R. at 12-13. He subsequently was O’Connor, Gary Leigh with whom A. transferred to Southwest Florida Sep- on Counsel; Bradley, Garvin, 21, 1995, General Ron tember “for further evaluation judged his condition was to have R. at including “[w]hen cardiac catheterization.” discharged tertiary he referred to a improved, He later from South- was 26,1995. Dx (diagnosis) R. at [ ] center further west Florida (treatment) Bonet con- 130-31. and Rx Dr. [ ].” *3 appellant’s was cluded that the “condition 28, 1995, Dr. Fred Was- On for of enough stabilized an ambulance ride serman, physician assigned to review but minutes, good enough for 20[to] 30 of appellant’s claim for reimbursement Petersburg/Tampa to St. 3[-]hour[ ] a ride care for unauthorized medical expenses (R. [VAMC],” (emphasis orig- in at (a provided claim that Southwest Florida inal)) facility. apparently closest VA formally until November that was not filed 1995) prepared Report a of Contact Metke, January In Dr. P. Michael indicating following: form at appellant’s treating physician South- Florida, stated, “High probability emergency reviewing noted that after west transfer; Collier, prior to that condition had resolved medical from North records from Hos- agreed opinion without information N.Collier with Dr. Bonet’s that he pital, am unable to assess if this provide [I] unable North Collier was ’ for an period hospitalization care, necessary that at the earliest if emergency emergency condition or opportunity, Mr. Bellezza was transferred prior to transfer.” condition had resolved facility capable performing to the closest coronary angiograph coronary a ar- 162. R. at tery He further stated revascularization. 20, 1995, Dr. On November Wasserman his unstable that “because of situation Report signed second form a Contact [transferring patient the nearest to] claim, indicating that he reviewed coronary proceed available with “[plrofessional prerequisites and that in angiograph and revascularization was [(now 38 C.F.R. 17.80 patient’s R. 172. interest.” at best 17.120) satisfied,” and have' not been ] opined appellant Dr. Metke later “Nonemer[gency] (emergency] stating: life[-]threatening “in situation” had been transfer)[;] fa- prior had resolved from at the time of his transfer North cility] at On No- R. available].” (R. 177) to Southwest Florida at Collier 21, 1995, the of the Medical vember Chief accepting “it and that would have involved (MAS) Bay Administration at the Service appellant] higher risk of [the life (VAMC) Bay VA Medical Center Pines transported to be required had he been Pines, Florida, disapproved claim for revascularizing institution before another Florida, care at Southwest be- medical (R. 180). his heart” The MAS Chief not ren- cause and services were “[c]are (R. at 182- issued a Statement Case na- in a of such dered medical 93), filed a Substantive delay have hazardous ture that would been (R. 195-96). Appeal to the Board appel- R. to life or health.” at 166. Disagreement lant filed Notice decision, February In its R. at 174-75. the denial. Board, denying appellant’ claim in- expenses of medical Bonet, In Dr. Luis December at Southwest Florida before curred treating at North authorized, stated: treatment was Collier, indicating filed a statement that the treat- is clear as to appellant presented infarction, and cannot ment for which the VA can myocardial room with acute treatment, pay or reimburse. Under he had received (2001),] only a 17.121 This [ Court will defer to reasonable “VA’s empowered to determine when veteran interpretation statutory provision of a who hospital received care when ‘a gap the law ... leaves ” been to a transferred fill,’ agency to agency and the fills medical center or when the veteran gap an “interpretive regulation with ‘based reported could have to a permissible upon a construction of the ” center and this case that determina- Principi, Gallegos statute.’ 283 F.3d tion has been rendered (Fed.Cir.2002) (citations omit- cian, who has indicated that the veteran ted). could have been transferred to a VA *4 appellant argues The that 38 C.F.R. 21, September 1995. In view arbitrary, 17.121 is capricious, an abuse regulation!],] the Board finds that discretion, or otherwise not in accor private physicians’ the opinions have lit- law, requires dance with because probative tle Although value. the Board expenses claims for reimbursement for sympathetic situation, is to the veteran’s unauthorized medical care and services be simply legal upon there is no basis which on an decided “irrational also basis.” He responsible Board could find VA for argues that regulation conflicts 38 with the veteran’s medical treatment 5107(b) 7104(a). §§ The Secre Florida September Southwest from 21 to tary argues that the Court should vacate September being 1995. This the Board’s decision and remand the claim case, deny the Board must the veteran’s provide because the Board failed to suffi claim of entitlement cient reasons and bases for its determina payment or of the cost of medical treat- tion required to 38 U.S.C. provided pri- in association with 7104(d)(1) Brown, Allday v. 7 Vet. hospitalization vate from App. 527 (holding that a state 26, 1995, 21[to] at Southwest Florida. ment of reasons adequate or bases must be Following decision, R. appel- to enable claimant to precise understand properly timely
lant appeal. filed this decision, basis for Board’s as well toas review). judicial facilitate The Court re II. ANALYSIS jects parties’ arguments. both regu At the heart of this case is whether statutes, lation does not conflict with the correctly interpreted the Board 38 C.F.R. nor does the error Board’s lie its articu (2001). § 17.121 the ... “Whether Board lation of reasons and bases for its decision. properly interpreted has regula law or Although correctly the Board found that is a tion matter which this Court reviews “only empowered VA Brown, Cropper de novo.” Vet.App. 6 determine when a veteran who received (1994); 454 see also Hunt v. Derwin emergency hospital care could have been ski, 1 However, Vet.App. 293 center,” transferred to a VA medical so, in doing “[substantial giv deference is finds, review, upon de novo statutory interpretation en to the limiting erred its review of the agency authorized to administer stat VA determination. Livesay Principi, ute.” (2001) (en banc) focus (quoting challenge Chevron U.S.A., Council, regulation’s Inc. on the requirement only v. Natural Res. Def. Inc., 837, 844, U.S. may S.Ct. decide when a medical (1984)); ends, L.Ed.2d see also Tollman purposes of entitle- Brown, 463-65 ment to benefits under 38 U.S.C. (a) ... transferred Indeed, ... could have been 17.120. and 38 C.F.R. regulation read as to a medical center.... language of the (i.e., that Board is suggests (b) reported to a private physi- permitted to review medical center.... point of opinions ending cian’s (2001) (emphasis sup- § 17.121 emergency), regulation simply This fills plied). being con- arguably be invalid as might as to the mechanics gaps the statute left trary authorized used to award to consider all require statute, upon permissi- and is based appel- deciding available See of that statute. ble construction How- to receive benefits. eligibility lant’s Gallegos, supra. ever, regulation requires more than determina- just unbridled regulation requires that a Although the ending point emergen- of an tion as to a medical physician determine when granting denying or cy purposes ended, requires that it also benefits. a factual determination as the Board make *5 physician exercised sound to whether the provides title for the 1728 of
Section judgment arriving in at his deci- medical ex- of certain medical reimbursement is this factual sion. It in determination as penses regulations to “such requirement the Board satisfies its including Secretary prescribe,” the shall under 38 U.S.C. reimbursing hospital entitled to veterans Contrary to review all available evidence. they at care instead care for arguments, regulation the facility, provided appellant’s non-VA received from a require blindly The rub- conditions are satisfied. stat- not certain does specific spell not out the means ber-stamp physician’s ute does decision as VA is to be by Despite which such ar- “conclusive.” Rather, statute, provided. conjunc- in Board, deciding in entitle-" gument that the provisions with the of U.S.C. 17.121, tion benefits under 38 C.F.R. Secretary to fill such admin- authorizes opin- private physicians’ consider cannot awarding in Ac- gaps istrative benefits. ions, reality private physi- is that those promulgated 38 cordingly, by must considered opinions cians’ be 17.121, pertinent part of C.F.R. can physician the VA physician VA before reads as follows: ended. emergency an determine when payment or reimbursement Claims Moreover, in it from the is clear record hospital care the costs of of the VA did consid- this case that previously autho- services not or medical er them. any approved period not
rized will be definition, every veteran seek By the medical beyond the date on which ing benefits under 38 U.S.C. purpose of ended. For the care or § 17.120 received medical of the ex- payment or reimbursement A physician. from a non-VA services hospital care or pense medi provided the who has not autho- previously services not must, per question or services in cal care rized, emergency shall be deemed force, attend opinions consider point have ended at that when to make a sound that, ing physicians order based physician has related the care medical determination judgement, veter- upon sound medical history of question. and services an: regulation supports this conclusion. would lead dissimilar results 19, 1984) FecLReg. (Apr. See 49 Requiring similar cases. that the decision (“The will all obtain available medical by capable be made a neutral individual documentation and evidence from treat- making determination, such medical facility to ing making assist a decision does, appropriate is an exercise based on sound medical judgment.”). Secretary’s rule-making power. Ad- judgment Sound medical would seem to ditionally, by requiring that the ultimate minimum, require, physi- that the VA be made physicians, decision making cian the determination examine Secretary ensures some amount of unifor- and account for available medical records. mity in particular decisions as to whether responsibility It the Board’s to ensure veterans receive benefits under the stat- that the VA determination as ute. ending point of the medical emer- Court points regulation, out that the gency private physicians’ considered the written, provides adequate safeguards Here, opinions and records. ensure that Board and the veteran determining erred in do avenues with which to positive so. It duty inquire into challenge address all or part either and/or judgment” the “sound medical of the VA concerning the VA decisions physician. ending point emergency. the medical aside, As an the Court notes that the The Board not only capability, but system, veterans’ the adminis- responsibility also the to make a factual adjudication level, trative design a determination as to whether *6 not, process. non-adversarial It does as cian judgement exercised sound medical in appellant suggests, may the and as be deciding the ending point of medical courts, typical in other the set veteran issue, emergency at and should the veter- against Secretary. “par- are no There disagree with the Board’s factual find- prior dies” to the commencement of the ings point, on this the veteran litigation phase process. physi- right appeal them. interest, no personal cians have pecuniary Finally, Board, notes that the otherwise, or in particular whether veter- in reviewing available, all the evidence in ans receive benefits under title 38 of the order determine whether the VA are, thus, They simply U.S.Code. “neutral” cian judgment, exercised sound medical gatekeepers purpose whose is to render 5107(b) by required sections objective medical opinions. Someone must not that accept need decision ultimately make a determination as to Rather, may conclusive. the Board deter- when a medical pur- ended for physician mine the VA did not exercise poses awarding denying or un- judgment sound medical because he or she 38 der 1728. The Board cannot evidence, failed to consider certain or oth- perform gatekeeper function because why opinion erwise failed to account for his the Board is not authorized render un- contrary overwhelming evidence substantiated medical determinations. See Derwinski, (1991). might that Vet.App. Colvin v. have lead to another conclusion. Colvin, permit VetApp. private (inviting To diverse at 175 physicians who provided issue, out care services at Board seek other medical evidence might who if have a vested it was not satisfied that interest determination, to make that ultimate available was for it to sufficient make determination, determination). instances, would not be In such 19.9(a) (1999); v. Der Littke require that Board inconsistencies, evi- consider clarify certain winski considered, or seek previously
dence physician. opinion of another KRAMER, Judge, concurring in Chief restricts in the Nothing the result: physician’s opinions. Id. Board to one majority a remand agree I with the that required in this case because Board III. CONCLUSION BVA) (Board or of Veterans’ case, to make a In this the Board failed limiting to whether erred its review to whether Dr. factual determination as determined under judg sound medical Wasserman exercised an 17.121 determining ending point However, I disagree with had ended. In at issue. decid medical holding may re- majority’s exercised ing Dr. Wasserman whether. the VA deci- only view whether Board, judgment, sound medical judg- sion was based on sound medical proba necessity; have considered should below, I ment. For the reasons discussed physicians. of the private tive the views § 17.121 is invalid to the ex- believe that Therefore, the Board erred lim because statuto- that it is inconsistent with the tent deter iting its review of Dr. Wasserman’s ry requirements mination, VACATE the the Court will 7104(a). and REMAND the claim Board’s decision readjudication, may so Board, appeal, In its decision opportunity have the determine whether 17.121, private found that the based on upon Dr. decision was based Wasserman’s physicians’ opinions probative had “little s,ound Board’s de judgment. determining whether the emer- value” judg sound medical cision as whether gency had ended before upon all the ment was used must be based Regional transfer Florida Southwest See Weaver Princi evidence available. Florida). (Southwest Rec- Medical Center Addition pi, *7 (R.) at 6. The Board concluded ord remand, appellant is free to ally, on legal upon which no basis there was argument additional evidence and submit claim, only granted have because necessary the resolution of his claim. to physician empowered a is to determine West, Kutscherousky Vet.App. v. 12 emergency and be- had ended whether expe proceed The Board shall 372 had cause in this case 302 of ditiously accordance with section emergency ended concluded Act, Improvement the Veterans’ Benefits to was transferred before 103-446, 302, § No. 108 Stat. Pub.L. R. at 6. Southwest Florida. (found (1994) § 5101 4658 38 U.S.C. argument The thrust of the note) Secretary provide to (requiring the that, § is under why to 17.121 is invalid for claims re “expeditious treatment” by a regulation, decision Court). by the Board or the See manded emergency has end- cian as to whether an Brown, Vet.App. 10 257 Drosky v. by thus not renewable Brown, ed conclusive (1997); Allday Secretary counters the Board. Moreover, if the circumstances only is reviewable but legal such decision warrant, obli Board is authorized and the decision was “based as to whether to the re to the claim gated remand judgment,” 38 C.F.R. development. See sound for further gional office ton, regulation provides § That that “an (remanding 17.121. at 327-29 finding shall be deemed to have ended where Board made factual ap- there was no time that point at that has when VA private that, pellant hospital was admitted to based on sound medical private but Board failed to consider doc- judgment, ... a veteran could have been issue); Hennessey tor’s statement on that facility from the transferred non-VA (re- Brown, (1994) 7 Vet.App. medical center ... or ... could alia, for, manding inter “further evidentia- reported a VA medical center con- ry development the appel- as whether tinuation of for the disability.” treatment lant’s condition an emergency constituted § 17.121. ... ... whether a VA Secretary authority pre- “The ‘feasibly available’ for the recommended regulations all scribe rules and which are By statute, therefore, surgery”). necessary carry or out the 511(a) Board’s review section matters is by Department laws administered plenary, without on the ques- restrictions are with consistent those laws.” U.S.C. tions may or evidence of record the Board 501(a) added). § (emphasis Neither consider. statute, § Moreover, review, part of the Board’s implementing regulations, nor approximate is an “[w]hen there balance of 17.121, expressly 17.120 and ad- positive negative regarding evidence dresses BVA review. any issue material to the determination Nonetheless, questions “[a]ll in a matter matter, give shall the benefit [Board] 511(a) § [38 under U.S.C. ] doubt the claimant.” 38 U.S.C. subject to decision shall 5107(b); Derwinski, see Gilbert 1 Vet. subject appeal be to one review on to the (1990) (“when App. a veteran seehs Secretary. ap Final decisions on such benefits and the is in relative peals shall be made the Board.” 38 equipoise, the law dictates that veteran 7104(a); see also 38 C.F.R. prevails”). Secretary’s As argu (after § 17.132 denial of claim made ment that the section benefit-of- under 38 U.S.C. “claimant shall be apply the-doubt rule does not 17.121 right notified ... of the to initiate an decisions, evidentiary determinations to$s Board....”). appeal to the According to whether there was an are plain language of section all clearly subject chapter 51 of title 511(a) questions, including section whether U.S.Code, including the benefit-of-the- (as an emergency has ended contrasted rule. Hennessey, doubt See Cotton and *8 question with the more limited of whether Brown, supra; both see also Woodson v. physician’s decision was based on 352, (1995), pertinent aff'd judgment) subject sound medical are (Fed.Cir.1996) part, 87 F.3d Brown, BVA review. See Cotton v. 7 Vet. (holding section 1728 claim App. Accordingly, such grounded was not well under former 38 on BVA review is 5107(a)); Brown, “based entire record Parker v. Vet. (same). proceeding upon and consideration App. If BVA re of all and material of record and physi view is limited whether the provisions applicable regula of law and cian’s determination was based sound tion,” and must judgment, possibility there medical of equi finding development poise, fore include fact and therefore the benefit of the doubt, of the appropriate, evidence where see Cot- is eliminated because the Board physi accept a VA required to would be if based on opinion as conclusive cian’s SIMMONS, Appellant, D. Richard though it even judgment, sound enough meet persuasive not be
might words, a In other threshold. equipoise PRINCIPI, Anthony J. accept requiring Affairs, construct Appellee. Veterans determination conclusive No. 98-354. judgment would on sound medical based Appeals United Court possibility that States into account the not take Claims. exercising med Veterans sound both physicians, two rendered dia judgment, ical could 7, 2002. June and that one opposed opinions metrically than, least STEINBERG, or at persuasive HOLDAWAY, be more Before as, In this the other. persuasive GREENE, equally Judges. physi that a VA the Court notes
regard, most necessarily not opinion cian’s ORDER particular case. The in a credible evidence PER CURIAM: specific physi that a long held Court status, 30, 2000, let preferred panel of the Court given August cian be On status, appeal instant determining and that eviden- opinion alone issued an of the including assessing January 1998 decision tiary affirming determinations — (Board or opin credibility of medical Board of Veterans’ credentials BVA) April that an had on all the evidence to be based ions—are Brown, by Department of Veterans 4 Vet. 1977 decision of record. See Guerrieri (VA) (RO), which regional office (1993); Affairs White v. 471-73 see also App. (Fed.Cir. for ar connection denied service Principi, 243 F.3d disorder, did not nervous thritis and a 2001). error and unmistakable clear contain that, I hold Accordingly, would West, (CUE). Simmons aof VA that it restricts BVA review extent judg entered The Court 91-92 decision, § invalid be- 17.121 is 21, 2000. On Novem ment on with the veterans’ cause is inconsistent judg its 13, 2000, the recalled ber scheme, specifically sec- statutory ment, the enactment noting that 7104(a). See 38 U.S.C. tions Act of Assistance Claims Veterans § 501. (Nov. 9, 106-475, 114 Stat.2096 Pub.L. No. 2000) (VCAA), disposition may affect the jurisdiction. under its many appeals 5, 2000, appellant,
On December counsel, to vacate a motion through filed 30, 2000, opinion. On August Court’s *9 ordered the Court December address briefs parties supplemental to file changes in law enact effect of the ing the also ordered ed the VCAA. to vacate motion abey- held opinion'be August