Parker v. BrownParker v. Brown
Lead Opinion
HOLDAWAY, Judge, filed the opinion of the Court, in which FARLEY, Judge, joined. KRAMER, Judge, filed a dissenting opinion.
The appellant, Columbus J. Parker, Jr., appeals two decisions of the Board of Veterans’ Appeals (BVA), both of which were decided on January 26,1993. The first decision denied entitlement to an increase in the 40% evaluation currently assigned to the residuals of a low back injury with spondylosis, L5-S1, status post fusion and spondylolisthesis and spina bifida occulta of L-5. The second decision denied entitlement to payment for non-emergency medical care provided to the appellant from May 14, 1990, to July 23, 1990, and for a period of hospitalization in August 1990.
I. FACTUAL AND PROCEDURAL BACKGROUND
The appellant had active service from May 1963 to July 1967, and from September 1968 to August 1984. In February 1985, he was service connected at 20% under
In October 1990, the appellant wrote a letter to the director of the Dallas VA Medical Center (MC) requesting “payment for medical services provided to [him] by civilian doctors and/or facilities” for his service-connected back condition which were not previously authorized by VA. The services for
In April 1991, the 40% rating for the back injury was restored, thus restoring .the combined rating of 50%. On May 18, 1991, the appellant filed a Notice of Disagreement (NOD) which stated that he deserved a higher rating for his back injury because he was not employable.
On May 20, 1991, the appellant’s claim for payment for nonemergency medical care was denied on the basis that, in the opinion of the physicians who reviewed the medical reports in question, there was no emergency which prevented the appellant from coming to the VAMC for treatment. See
An SOC was issued in July 1991 regarding the appellant’s claim for an increased evaluation for his back injury. In October 1991, VA issued a confirmed rating decision regarding the appellant’s claim for an increased rating for his back injury. A Supplemental SOC regarding that claim was issued in November 1991. A hearing regarding that claim was held at the Dallas VAMC in January 1992, and the hearing panel determined that its decision was unchanged and the claim was denied.
In January 1993, the BVA denied entitlement to an increased rating for the back injury on the ground that the appellant did not meet the schedular criteria for an increased evaluation. In the same decision, the BVA referred the issue of a total disability rating based on individual unemployability (TDIU) to the regional office (RO) for “appropriate development.”
Also in January 1993, the BVA, in a separate decision, denied entitlement to payment for nonemergeney medical care provided to the appellant from May 14, 1990, to July 23, 1990, and for a period of hospitalization in August 1990. The BVA concluded that the appellant’s claim was not well grounded because “[t]he evidence and the appellant’s testimony demonstrate clearly that the unauthorized medical services received at a private facility from May through August 1990 were not rendered in a medical emergency of such nature that delay would have been hazardous to life or health.” See
II. ANALYSIS,
A. Increased rating (back injury)
The Secretary contends that the Court lacks jurisdiction over this appeal because the issue of an increased rating for the appellant’s back injury is “inextricably intertwined” with the issue of unemployability which was referred to the RO. Harris v. Derwinski,
In this case, the question is whether in deciding the TDIU claim, the RO would have to reexamine the merits of the denied claim for an increased disability rating which is pending on appeal before this Court. Obviously it would not. Therefore, the claims are easily extricable. Harris is a far different case where the veteran’s heart disorder, the subject of his remanded claim, was, according to the veteran, the cause of his anxiety disorder, the claim which was on appeal. See Harris,
We agree with the Secretary’s alternative argument that the appeal of the claim for an increased rating, as it includes wholly factual matters, may be disposed of under the “clearly erroneous” standard of
B. Reimbursement for nonemergency medical expenses
This is a case of first impression as to what constitutes a well-grounded claim for payment or reimbursement of medical expenses under
(a) The Secretary may, under such regulations as the Secretary shall prescribe, reimburse veterans entitled to hospital care or medical services under this chapter for the reasonable value of such care or services ..., for which such veterans have made payment, from sources other than the Department 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 ...; 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.
In a claim for reimbursement for emergency care, as in any other claim, it is necessary for the claimant to submit a “well-grounded claim,” i.e., one that is plausible, meritorious on its own or capable of substantiation. It must be a claim that is “possible,” Murphy v. Derwinski,
In this case the BVA found the claim not well grounded because there was no evidence submitted by anyone that the critical element for reimbursement, i.e., a medical emergency, existed. The “claimant” merely submitted his medical bills. He did not respond with any evidence when advised that reimbursement could be made only for emergency care. A claim would not be possible in this case without at least an implication that there was a medical emergency. The appellant’s own ipse dixit averment of an emergency might have been enough to ground the claim. The Court will face that question when it is posed, but here there is not even that. There is nothing other than the appellant’s unfounded “assumption” that the VA would reimburse him solely because the treatment was for a service-connected condition. The BVA was correct in finding the claim not to be well grounded.
III. CONCLUSION
Upon consideration of the above, the BVA’s decision denying the appellant’s claim for an increased rating for residuals is AFFIRMED. We also affirm the BVA’s decision that there was not a well-grounded claim for reimbursement of medical expenses incurred because of a medical emergency.
Dissenting Opinion
dissenting:
I would hold that the appellant’s claims for a total disability rating based on individual unemployability (TDIU) and an increased rating for a back condition are “inextricably intertwined,” and that his claim for payment or reimbursement of unauthorized medical expenses is well grounded.
I. INCREASED RATING (BACK INJURY)
Harris v. Derwinski,
As a consequence of the BVA decision on review, a claim for TDIU is pending at the administrative level, while a claim for an increased rating of a condition which constitutes an integral part of the TDIU claim is on appeal to the Court. As I stated in my concurring opinion in Holland v. Brown,
[BJoth a schedular rating and a TDIU rating are based on the extent to which a disability negatively impacts upon employ-ability. See38 C.F.R. § 4.1 (1993) (sche-dular “ratings represent ... the average impairment in earning capacity”);38 C.F.R. §§ 4.15 , 4.16 (1993) (TDIU ratings represent the inability “to follow a substantially gainful occupation”). A TDIU rating which is premised upon a condition which is also the subject of a rating in terms of percentage of disability is inextricably intertwined with the percentage rating. The evidence used to support both ratings must overlap, at least in part, because the inquiry is the same: what is the degree of disability?
Thus, I agree with the Secretary that the issue of an increased rating for the appellant’s back injury is inextricably intertwined with the issue of a TDIU rating, and that review by the Court of the increased rating claim is, therefore, premature.
To the extent the majority relies on Holland for its result, I would point out that Holland conflicts with Harris in that it attempts to limit Harris only to those situations where a future administrative action on one claim will “necessarily” affect' Court review on another claim. The majority in Holland specifically determined that such a construct only occurs where the Court is reviewing TDIU and the claim before the administrative body is one for an increased rating, but not conversely, as is the ease here. Cf. Vettese v. Brown,
The fallacy of such a proposition is twofold. First, it fails to recognize that when the claims are in a juxtaposed situation (increased rating before the Court and TDIU below), evidence pertaining to TDIU before the administrative body might have a significant impact as to the proper rating of the underlying condition. Second, even if we impose a one-way street where Harris applies only to a situation where the claim for an increased rating is below and TDIU here, an administrative decision as to the rating increase may not “necessarily” affect the Court’s review of TDIU in that if the rating increase were to be denied, such a denial would not affect that Court’s review of TDIU, regardless of whether the review occurred before or after such denial.
Finally, to add more confusion on the question of whether two claims are “inextricably intertwined,” the majority changes the Holland test, which focused only on the impact that the pending administrative action would have on the Court’s decision, by focusing only on the impact that the issue before the Court would have on the pending administrative action:
In this case, the question is whether in deciding the TDIU claim, the RO would have to reexamine the merits of the denied claim for an increased disability rating which is pending on appeal before this Court. Obviously it would not. Therefore, the claims are easily extricable.... The subjective factors that are the core of a TDIU claim can be adjudicated without necessarily reexamining or reopening the underlying objective disability rating.
Ante at 119.
II. PAYMENT OR REIMBURSEMENT OF UNAUTHORIZED MEDICAL EXPENSES
As the majority stated, this is a case of first impression as to what constitutes a well-grounded claim for payment or reimbursement of medical expenses under
The appellant has the burden of submitting evidence sufficient to justify a belief that a claim is well grounded.
Under the statutory structure of
Turning to this case, it is undisputed that the appellant is a veteran, that he received medical treatment from someone other than VA, and that such treatment was rendered for payment. Therefore, the first, third, and fourth threshold requirements have been satisfied. As to whether the appellant is entitled to hospital care or medical services under Chapter 17 (the second threshold requirement),
If, after these threshold requirements have been met, the appellant still must submit evidence of a medical emergency (subpara-graph (1)) in order for his claim to be well grounded under
Recently, in Robinette v. Brown, — Vet. App. -, -, No. 93-985, slip op. at 10,