Us Dept.of Veterans Affairs Oig.

[Mcafee]

Hello All Hope All Is Well.

If this doesn't pop your bubble I don't know what will.

Some of you are aware of my situation and the East Orange VA Medical Center.In my attempts to resolve falsified documentation and progress notes.

After contacting nearly every Various Agency regarding these concerns,only to be redirected back to this Facility to Include especially SECRETARY SHINSEKIS OFFICE and his wonderful,courtesy,professional STAFF whom never responded to my letter to date.A secretary placed a call to OIG, who called me on Friday and accused me of bodily harm to the director of this facility imagine that.Now mind you I have bad legs spinal injury and 50 years old and high school was over 35 years ago.The arrogance of this guy who spoke to me was like a street punk no professionalism at all,I did explain to him that I will never NEVER return to this Facility in this life time.And I asked him for his supervisors name and number and i will be contacting him on the behavior of this representative of Office of Inspector General.

Needless to say i called today to speak to the Secretary Shinsekis Secretary to explain what has transpired on Friday,Only to be scolded by this individual and threatened me with law enforcement action.Sure as the sun will rise OIG was at my door giving me a WARNING not ot contact any Various Agency till further notice.

AND YET I WHOM SERVED BACK IN THE SEEVENTIES THE ARROGANCE OF THIS WASHINGTON DC PEN PUSHER SHOULD BE SO ASHAMED OF HERSELF TO BE A REPRESENTATIVE WHOM ARE SUPPOSED TO BE IN PLACE TO ASSIST VETERANS WITH ISSUES.

At this point these individuals whom live off the TAX PAYERS should go and pick up a weapon and serve before they know what the heck they are involved with half of these pen pushers are not veterans.

All I can say Is I am ashamed to be an AMERICAN CITIZEN AND A VETERAN WHOM SERVED PROUDLY TO be BELITTLED BY THESE ASSHOLES.

SHAME ON YOU ERIC SHINSEKI AND YOUR ILLICIT STAFF.Take responsibility for your endeavors

[Mcafee]

Hello All Hope All Is Well.

BRONCOVET Motivation is not Revenge if this were the case any individual with a end result in mind would not announce ones intention first of all. secondly my intent or end result is just like the rest of all of you here to gain what I am entitled too for SERVICE TO THE UNITED STATES OF AMERICA FOR SUSTAINED INJURIES DURING THAT PERIOD NOTHING MORE NOTHING LESS.

As for FEE BASE CARE I was told to find a physician and let the VAMC know whom the physician. no guide line or procedures I asked for them to send me a correspondence as to what I have to do they said it does not exist.

As for my GOD the lord takes care of those whom take care of themselves and he will take care of the rest?

I did not create this enviorment the VAMC did,but they also thought they had some kind of woodlawn creature that would follow there every command.

I WISH EVERYONE A VERY SPECIAL AND HAPPY HOLIDAY WITH YOUR LOVED ONES AND FAMILIES GOD BLESS ALL OF YOU.

AND FOR THOSE WHOM HAVE SEREVED THANK YOU FOR YOUR SERVICE (GOD BLESS AND GOOD NIGHT) (RED SKELTON)

[carlie]

Mcafee,

I would want something in writing that shows approval for

Fee Basis Medical Care prior to getting it.

Here's some info for your research.

Hope this helps a vet.

carlie

Info for Medical (Fee Basis) is located in 38 CFR Part 1 Section 17.

http://ecfr.gpoaccess.gov/cgi/t/text/text-....19&idno=38

http://www4.va.gov/vetapp09/files2/0915149.txt

Citation Nr: 0915149

Decision Date: 04/22/09 Archive Date: 04/29/09

DOCKET NO. 02-12 923 ) DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office in New York,

New York

THE ISSUES

1. Entitlement to a fee basis medical identification card.

2. Entitlement to payment or reimbursement for expenses

incurred in connection with unauthorized private medical

services.

REPRESENTATION

Appellant represented by: New York State Division of

Veterans' Affairs

WITNESSES AT HEARING ON APPEAL

Appellant and his private physician

ATTORNEY FOR THE BOARD

C. Fetty, Counsel

INTRODUCTION

The Veteran served on active duty from December 1965 to

December 1967.

This matter comes before the Board of Veterans' Appeals

(Board) on appeal from a decision dated in April 2002 by the

Medical Administration Service (MAS) of the Department of

Veterans Affairs Medical Center in New York, New York. The

Department of Veterans Affairs (VA) Regional Office (RO) in

New York, New York, forwarded the case to the Board.

In March 2003 and in June 2004, the Board remanded the case

for additional development. The case has been returned to

the Board for further appellate consideration.

FINDINGS OF FACT

1. The claimant is a Veteran seeking treatment for a

service-connected disability.

2. The Board lacks jurisdiction to address medical

determinations, such as determinations of the need for and

appropriateness of specific types of medical care and

treatment for an individual.

3. The Board has jurisdiction to review a determination by a

VA Medical Center that the Veteran was not eligible for fee

basis outpatient treatment for service-connected disabilities

on the basis that VA facilities are either (1) geographically

inaccessible, or, (2) VA is not capable of providing the care

or service required.

4. A private physician has reported that VA cannot provide

needed PTSD treatment.

5. Payment or reimbursement of the cost of the private

medical care received from 1999 to the present was not

authorized in advance by VA.

6. VA PTSD treatment facilities have been geographically

accessible throughout the appeal period.

7. The competent medical evidence addressing whether VA is

capable of correctly managing all necessary drugs

prescriptions without a private physician's oversight and

supplemental treatment is in relative equipoise.

CONCLUSIONS OF LAW

1. The criteria for a fee basis medical identification card

are met. 38 U.S.C.A. § 1703, 5103, 5103A, 5107 (West 2002 &

Supp. 2008); 38 C.F.R. § 17.52 (2008).

2. The criteria for the reimbursement for the claimed

private medical services are met. 38 U.S.C.A. § 1703, 1728,

5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. § 17.52

(2008).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

As provided in 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107,

5126 (West 2002

& Supp. 2008); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and

3.326(a) (2008), VA has a duty to notify and assist the

claimant in the development of the claim. In this case, the

Board is granting the benefits sought on appeal.

Accordingly, the duty to notify and the duty to assist need

not be discussed.

When VA facilities or other government facilities are not

capable of furnishing economical hospital care or medical

services because of geographic inaccessibility or are not

capable of furnishing care or services required, VA may

contract with non-VA facilities to provide the appropriate

care. 38 U.S.C.A. § 1703 (West 2002 & Supp. 2008); 38 C.F.R.

§ 17.52 (2008).

Hospital care or medical services will be authorized to a

Veteran under a number of circumstances including for

treatment of (i) A service-connected disability; or (ii) A

disability for which a Veteran was discharged or released

from the active military, naval, or air service; or (iii) A

disability of a Veteran who has a total disability permanent

in nature from a service-connected disability; or (iv) a

disability associated with and held to be aggravating a

service-connected disability; or (v) any disability of a

Veteran participating in a rehabilitation program under

38 U.S.C. ch. 31 and when there is a need for hospital care

or medical services for any of the reasons enumerated in Sec.

17.48(j).

The Board's jurisdiction over eligibility issues arises under

38 C.F.R. § 20.101 (2008). Subsection 20.101(b) states that

the Board's jurisdiction extends to questions of eligibility

for hospitalization, outpatient treatment, and nursing home

and domiciliary care; for devices such as prostheses, canes,

wheelchairs, back braces, orthopedic shoes, and similar

appliances; and for other benefits administered by the

Veterans Health Administration; however, medical

determinations, such as determinations of the need for and

appropriateness of specific types of medical care and

treatment for an individual, are not adjudicative matters and

are thus beyond the Board's jurisdiction. Typical examples

of matters that are beyond the Board's jurisdiction include

whether a particular drug should be prescribed, whether a

specific type of physiotherapy should be ordered, and similar

judgmental treatment decisions that face the attending

physician. 38 C.F.R. § 20.101(b) (2008).

In Meakin v. West, 11 Vet. App. 183 (1998), the United States

Court of Appeals for Veterans Claims (Court) determined that

the Board had jurisdiction to review a determination by a VA

Medical Center that denied eligibility for fee basis

outpatient treatment for service-connected disabilities. The

Court noted that in determining whether a claimant would be

eligible for fee basis outpatient medical care, a claimant

must be a Veteran seeking treatment for a service-connected

disability, and VA facilities must be either (1)

geographically inaccessible or (2) not capable of providing

the care or services that the claimant requires. The Court

stated that with regard to the latter factor, the

determination of whether a VA facility is capable of

furnishing specific care or services does not involve a

medical determination, nor does the question of the "need for

and appropriateness of specific types of medical care and

treatment," as contemplated by § 20.101. Meakin, 11 Vet.

App. at 187. Thus, as a general matter, the Board may review

claim for eligibility for a fee basis medical identification

card that would authorize payment for medical services for

outpatient treatment outside the VA healthcare system.

Fee Basis Medical Identification Card

According to a May 2001 rating decision, the Veteran has one

service-connected disability, that of post-traumatic stress

disorder (PTSD). It is rated 70 percent disabling. TDIU has

been granted effective from December 11, 1997. Because he

has a total disability permanent in nature from a service-

connected disability, he meets the disability criteria for

receiving fee basis medical services, as set forth at 38

C.F.R. § 17.52(a)(3). Consequently, the Board must determine

whether the VA Medical Center is capable of providing the

medical treatment the Veteran needs and whether it is

geographically accessible. 38 C.F.R. § 17.52(a) (2008).

In his April 2002 notice of disagreement, the Veteran

asserted that the Northport VA Medical Center is incapable of

providing electro-convulsive therapy (ECT) that has been

provided by his private health care provider. In his August

2002 substantive appeal, he reported that it had taken a

decade for private doctors to earn his trust and faith in

order to correctly treat his PTSD.

VA outpatient treatment reports include an August 1999 VA

mental health clinic report that notes that the Veteran

presented himself to a VA Medical Center and requested

outpatient ECT.

In January 2002, the Veteran's treating private psychiatrist,

K. Ditkowsky, M.D., reported that ECT is the only treatment

option for the Veteran that has proven effective. The doctor

noted that the VA Northport ECT site was too far from the

Veteran to be useful to him.

In October 2002, Dr. Ditkowsky reported that the necessary

treatment was such that VA could not provide it, but also

noted that blame for that shortcoming rested on both the

Veteran and VA. Dr. Ditkowsky explained that the Veteran's

inadequate response to medication necessitated ECT. Even

slight alterations in the Veteran's medical regimen had led

to severe mental deterioration. The doctor stated,

"Unfortunately, the VA has been unable to provide [the

Veteran] with the same regimen. The severe deterioration

noted in his condition necessitated his buying medication out

of pocket despite having limited resources." The doctor

then noted that VA physicians can perform ECT at the VA

Medical Center in a capable manner, but that the Veteran

mistrusts those physicians.

In October 2002, the Veteran testified before the undersigned

Veterans Law Judge that he attempted to switch from private

psychiatric care to VA care and that Dr. Ditkowsky faxed all

the necessary treatment reports to VA in preparation for this

change, but that upon arrival at the VA Medical Center for

his first appointment, a VA psychiatrist told him that all

the faxed private medical reports had been lost. This led to

an argument. The Veteran left the Medical Center and lost

confidence in the VA system. The Veteran stressed that he

did all he could to insure that the VA Medical Center had the

necessary medical records prior to his appointment and that

VA nevertheless lost those records.

At the hearing, the Veteran testified that more recently he

had seen another VA physician who did not prescribe certain

medication that he needs. He noted that VA would perform

ECT, but the facility is 40 miles from his home, which is too

far. Also, he testified that a newly assigned VA physician

at that location had gained notoriety for killing three

patients and thus could not be trusted. He testified that

although VA would transport him the 40 miles to and from ECT,

he would still have to make trips there for prescription

refills at his own expense, because these drugs cannot be

shipped by mail.

At the hearing, Dr. Ditkowsky appeared on behalf of the

Veteran. The doctor testified that he had treated the

Veteran for about 10 years. Dr. Ditkowsky noticed during

this time that although VA agreed to provide the Veteran's

medication, the dosages varied such that the Veteran did not

get what he needed. The doctor described a history of VA

"medication errors." The doctor testified that the Veteran

needed ECT for PTSD, but had not received it in almost three

years. The doctor testified to the effect that the Veteran

had trust issues with VA over lost paperwork and that a VA

psychiatrist whom the Veteran trusted had since left VA.

Moreover, the doctor testified, since that psychiatrist left,

VA could no longer offer ECT.

Dr. Ditkowsky testified that he even attempted to assist in

scheduling the Veteran's psychiatric appointments with VA,

but that these appointments would each be delayed or become

unavailable. Dr. Ditkowsky wound up feeling badly because he

was setting up the Veteran to be miserable. Dr. Ditkowsky

also testified that he had personal knowledge of the fact

that VA would not fill the Veteran's prescription correctly,

which required that the Veteran pay out-of-pocket for a

private pharmacy to fill it. Dr. Ditkowsky re-iterated that

when Dr. G., left VA, their ECT program stopped before the

Veteran received his first VA ECT treatment.

Dr. Ditkowsky also testified to the effect that the distance

between the Veteran's home and the VA Medical Center was such

that it is logistically hard for the Veteran to get there,

especially because the Veteran had a memory problem.

In November 2003, a VA physician reviewed the medical history

and reported that Northport VA Medical Center can and always

has been able to provide outpatient ECT services. Concerning

VA's losing the Veteran's records, the physician noted that

the VA fax machine is not reliable unless one makes a follow-

up telephone call to insure that the fax was received. The

physician noted that Dr. G's departure from VA did not

disrupt VA's ECT program and that VA determined that the

Veteran did not need ECT. The physician also felt that the

location of the VA Medical Center was reasonably accessible

to the Veteran, based on the Veteran's use of the facility

for other care.

In June 2004, the Board remanded the case for additional

development, including obtaining evidence of specific private

psychotherapy. In response, Dr. Ditkowsky submitted an

itemized account of treatment and charges dating from 1992 to

2005.

The above facts highlight three main areas of dispute. The

first dispute is the Veteran's need for ECT and various

prescription drugs for his service-connected PTSD. His

private physician makes a compelling argument for the need

for ECT; however, a VA physician disputes this fact and has

stated that the Veteran does not need ECT. Both agree that

the Veteran needs a regimen of prescription drugs. The Board

need not resolve a dispute concerning necessary treatment or

choice of prescription drugs because the determination of the

need for and appropriateness of specific types of medical

care and treatment, including drugs, are not adjudicative

matters and are beyond the Board's jurisdiction. 38 C.F.R.

§ 20.101 (b).

The second dispute is whether VA's facilities are

geographically inaccessible. The Board does have

jurisdiction to decide this dispute. Meakin, supra. With

respect to accessibility of a VA facility, in January 2002,

the Veteran's private physician reported that Northport VA

Medical Center was too far away to be useful. VA outpatient

treatment reports reflect, however, that the Veteran is able

to access the Northport VA Medical Center. The Board

therefore finds sufficient competent evidence that VA

facilities are geographically accessible to the Veteran.

The final issue is whether VA is capable of providing the

care or services required. Both physicians (VA and private)

agree that a regimen of prescription drugs is necessary to

treat the Veteran's PTSD. Dr. Ditkowsky testified concerning

VA's history of "medication errors" and the resulting lack

of trust in VA health care that this caused. This failure to

earn the necessary trust in order to treat PTSD reflects on

VA's capability of providing a required care or service.

In rebuttal, in the November 2003 report, the VA reviewing

physician stated that VA offers a full continuum of

medication and that the Veteran is "fairly stable" on

current medication. The VA physician appears to concede that

this stability has been achieved through a combination of

drugs supplied privately and those supplied by VA. While the

VA physician strongly disfavors treatment by a VA

psychiatrist and a private psychiatrist, the claims file

reflects that no solution has been found to the lack of trust

issue during the 10-year appeal period. Thus, it is unclear

that VA is capable of correctly managing all prescriptions

without a private physician's oversight and supplemental

treatment. It is also unclear that VA is capable of

fostering the trust needed for effective PTSD treatment in

this particular case.

Taking special note that the matter of whether a particular

drug or treatment regiment should be prescribed is beyond the

Board's jurisdiction, the issue here is not whether a

particular drug or treatment should be prescribed, but

whether VA is capable of supplying the necessary care. The

private medical opinion and the VA medical opinion appear to

be based on essentially correct facts. Although they arrive

at opposite conclusions concerning VA's capability to furnish

the necessary medical treatment, because they are based on

correct facts, each must be afforded probative weight. See

Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion

based upon an inaccurate factual premise has no probative

value).

Because the positive and negative opinions concerning VA's

capability of providing necessary treatment appear to be

equally probative or persuasive, the evidence concerning the

issue is in relative equipoise. This invokes the benefit of

the doubt doctrine. "When there is an approximate balance

of positive and negative evidence regarding any issue

material to the determination of a matter, the Secretary

shall give the benefit of the doubt to the claimant."

38 U.S.C.A. § 5107(b) (West 2002). The benefit of the doubt

doctrine will therefore be applied. See 38 U.S.C.A. § 5107

(West 2002); Gilbert, supra. Entitlement to a fee basis

medical identification card is granted.

Payment or Reimbursement for Expenses Incurred in connection

with Unauthorized Private Medical Services

The claim for VA payment or reimbursement of non-emergent

medical services received in non-VA facilities is governed by

38 U.S.C.A. § 1703; 38 C.F.R. § 17.52 in a manner similar to

entitlement to a fee basis medical identification card. The

Veteran has requested reimbursed for the private health care

provided for service-connected PTSD. In April 1999, his

private psychiatrist reported that private ECT treatment was

discontinued due to lack of insurance coverage.

As noted above, the law limits VA's payment for private

medical services to instances where VA facilities are

geographically inaccessible or were not capable of furnishing

necessary care or services. The Veteran has alleged that

either of these factors has been present since April 1999.

There are essentially two avenues for obtaining payment or

reimbursement of the expenses of private medical care, 38

U.S.C.A. §§ 1725 and 1728. Under 38 U.S.C.A. § 1728, the law

provides that, to the extent allowable, payment or

reimbursement of the expenses of care, not previously

authorized, in a private or public (or Federal) hospital not

operated by VA, or of any medical services not previously

authorized including transportation may be paid on the basis

of a claim timely filed, under the following circumstances:

(a) Care or services not previously authorized were rendered

to a Veteran in need of such care or services: (1) For an

adjudicated service-connected disability; (2) For non-

service-connected disabilities associated with and held to be

aggravating an adjudicated service-connected disability; (3)

For any disability of a Veteran who has a total disability

permanent in nature, resulting from a service-connected

disability; (4) For any illness, injury or dental condition

in the case of a Veteran who is participating in a

rehabilitation program under 38 U.S.C.A. § Chapter 31 and who

is medically determined to be in need of hospital care or

medical services for reasons set forth in 38 C.F.R. §

17.48(j); and

(b) Care and services not previously authorized were rendered

in a medical emergency of such nature that delay would have

been hazardous to life or health; and

© VA or other Federal facilities were not 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; see also Zimick v. West, 11 Vet.

App. 45, 49 (1998).

Thus, the question is whether VA or other Federal facilities

were not feasibly available and, if not, 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. "Feasibly available" is not defined in the

relevant statute or regulation. See 38 U.S.C.A. § 1728; 38

C.F.R. § 17.120. However, 38 C.F.R. § 17.53 states that a VA

facility may be considered not feasibly available when the

urgency of the applicant's medical condition, the relative

distance of the travel involved, or the nature of the

treatment required makes it necessary or economically

advisable to use public or private facilities. 38 C.F.R. §§

17.52, 17.53. For example, a VA facility would not be

feasibly available if there were evidence establishing that a

Veteran was brought to a hospital in an ambulance and the

ambulance personnel determined that the nearest available

appropriate level of care was at a non-VA medical center.

38 C.F.R. § 17.1002©.

The record does not establish that the VA medical facility

was geographically unavailable to provide the Veteran with

medical treatment for PTSD. In fact, the Veteran uses the

medical facility routinely. On the other hand, the private

physician testified that attempts to schedule VA psychiatric

care for the Veteran have proven to be a disappointment. The

private psychiatrist said that he could not get a VA PTSD

clinic appointment scheduled for the Veteran, or, when such

appointment was made, VA could not keep it.

Based on the foregoing evidence, including the Veteran's

testimony and Dr. Ditkowsky's testimony, there is a

reasonable doubt as to whether a VA medical facility is

capable of providing the treatment in question. This doubt

will be resolved in the Veteran's favor. Accordingly, the

Board must find that the Veteran is eligible to receive

reimbursement for the reasonable value of the PTSD treatment

in question under the provisions of 38 U.S.C.A. §§ 1703,

1728; 38 C.F.R. § 17.52.

ORDER

A fee basis medical identification card is granted.

Payment or reimbursement for claimed expenses incurred in

connection with unauthorized private medical treatment for

PTSD is granted, subject to the laws and regulations

governing payment of monetary benefits.

____________________________________________

A. BRYANT

Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

[Pete53]

Fee Basis is very limited and rigidly controlled

[deltaj]

Fee Basis is very limited and rigidly controlled

Last I heard fee basis only pays $125.00 a month and the M-21 manual states that providers of medical treatment do not have to keep recorders. I suspect that V.A. wants you to go away for a reason. One definite possibility to suspect is an error in your original rating decision where V.A. failed to obtained all your medical records in support of your claim. Dewayne Moore was one case like this and another was Garrett Moore. V.A. pulled this kind of c*ap on my husband for years by harrassing him and underrating him. They too sent him to fee basis for years. Now it turns out from the records that there is an error in the original decision similar to Dewayne Moore and similar to Garrett Hayre. I'm not sure he'll ever see any money for this error because some of his records have been stripped and V.A. coerced him into withdrawing his claim by threatening him in writing with a special apportionment. These people are creeps. My husband's file has altered service records too. There are 2 copies of his Army discharge physical exam in the record and one is missing the notation hx varicose veins because it has been altered. His May 1965 Navy enlistment exam showing scars on his legs from the varicose vein surgery is missing from the record. My husband had surgery in 1964 just after he got out of the Navy. I think you need to read the Federal Circuit decision in Cushman v. Shenseki which concerned altered medical records.

[carlie]

Last I heard fee basis only pays $125.00 a month and the M-21 manual states that providers of medical treatment do not have to keep recorders.

delta,

I have no link to provide but I myself have had over five K of

fee basis procedures done within just a couple of months.

carlie

[broncovet]

Well, yes, fee basis is limited and tightly controlled, but isnt VA medical care the same? Its not like the Va has "no rules or restrictions". Ever try to get, say, Chiropractic care through the VA? I dont know about you, but I would gladly trade my Va medical card for a private insurance company health plan.. Even tho I would have to pay a copay/deductable, I could see any doc I wanted and not just a VA doc, and I wouldnt have to put up with VA crapola anymore. I find it interesting that a 100% Pand T Veterans spouse can elect Champva or VAMC care, while Veterans are not offered the same option.