**UNITED STATES COURT OF VETERANS APPEALS**

No. 93-201

[Columbus J. Parker, Jr., Appellant]{.smallcaps},

[v.]{.smallcaps}

[Jesse Brown,]{.smallcaps}

[Secretary of Veterans Affairs, Appellee.]{.smallcaps}

On Appeal from the Board of Veterans\' Appeals

(Decided October 21, 1994 )

*Rick Bowman* was on the brief for the appellant.

*Mary Lou Keener*, General Counsel; *Norman G. Cooper*, Assistant
General Counsel; *Thomas A. McLaughlin*, Deputy Assistant General
Counsel, and *Richard J. Mayerick* were on the brief for the appellee.

Before KRAMER, FARLEY, and HOLDAWAY, *Judges*.

HOLDAWAY, *Judge,* filed the opinion of the Court, in which FARLEY,
*Judge*, joined. KRAMER, *Judge*, filed a dissenting opinion.

HOLDAWAY, *Judge*: 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 nonemergency 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 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5293
(1984), for residuals of a low back injury with spondylolysis L5-S1, and
with spondylolisthesis and spina bifida occulta, L5, postoperative, and
also service connected at 0% under DC 5257 for an injury, left knee,
postoperative, for a combined rating of 20%. In April 1985, the ratings
were increased to 40% for the back injury and 10% for the knee injury,
for a combined rating of 50%. In August 1989, the BVA denied entitlement
to increased ratings for both injuries and also denied entitlement to a
total disability rating due to individual unemployability. In February
1990, the 40% rating for the back injury was reduced to 20%, resulting
in a combined rating of 30%. The same rating decision also determined
that individual unemployabilty was not present.

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 which the appellant sought payment were rendered
between May and August 1990. He furnished no information, at that time,
of the circumstances surrounding the \"civilian\" treatment. He was
advised by letter that reimbursement was authorized only for medical
emergencies.

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* 38 U.S.C. § 1728(a); 38 C.F.R. § 17.80 (1993). The
appellant filed an NOD regarding this decision on May 30, 1991, and on
the same day a Statement of the Case (SOC) was issued regarding his
claim for payment of unauthorized medical expenses.

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 nonemergency 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* 38 U.S.C. §§ 1728(a),
5107(a); 38 C.F.R. § 17.80.

**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,* 1
Vet.App. 180 (1991), was cited as precedent. The Secretary failed to
cite either *Holland v. Brown*, 6 Vet.App. 443 (1994), or *Vettese v.
Brown,* \_\_\_ Vet.App. \_\_\_, No. 92-1297, slip op. at 5 (Sept. 9,
1994). These latter two cases hold that disability is related to a
separate claim for TDIU, but not inextricably so. As those cases found,
the rating given to a service-connected disability is related, but not
necessarily inextricably, to a separate claim for TDIU. In fact, a claim
for TDIU is based on an acknowledgment that even though a rating less
than 100% under the rating schedule may be correct, objectively, there
are subjective factors that may permit assigning a 100% rating to a
particular veteran under particular facts, notwithstanding the putative
correctness of the objective rating.

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*, 1 Vet.App. at 183. The Court found that the claimed disability
and the claimed residual disability were inextricably intertwined, so
that one could not be adjudicated without reference to the other. *Id.*
That is not so in this case. The subjective factors that are the core of
a TDIU claim can be adjudicated without necessarily reexamining or
reopening the underlying objective disability rating.

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
38 U.S.C. § 7261(a)(4). In this connection, having examined the record,
we are satisfied that there is a plausible basis for the findings of the
BVA and that adequate reasons or bases were given for that decision. We
affirm.

**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 38 U.S.C. § 1728(a), which provides:

> \(a\) 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,* 1 Vet.App. 78, 81 (1990).

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.

KRAMER, *Judge*, 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*, 1 Vet.App. 180, 183 (1991), stands for the
general proposition that the Court will not review Board of Veterans\'
Appeals (BVA) decisions in piecemeal fashion where such review might
result in a meaningless waste of judicial resources. Thus, where pending
administrative action on a claim might have a \"significant impact\" on
the Court\'s review of a BVA decision on another claim, the Court will
not provide separate review of that BVA decision. *Id.*

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*, 6 Vet.App. 443, 449 (1994):

> \[B\]oth a schedular rating and a TDIU rating are based on the extent
> to which a disability negatively impacts upon employability. *See* 38
> C.F.R. § 4.1 (1993) (schedular \"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 case here. *Cf. Vettese v. Brown*, \_\_ Vet.App
\_\_, No. 92-1297 (Sept. 9, 1994).

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 \_\_, slip op. at 4.

**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 38 U.S.C. § 1728(a), which is quoted in the
majority opinion, *ante* at \_\_, slip op. at 4-5.

The appellant has the burden of submitting evidence sufficient to
justify a belief that a claim is well grounded. 38 U.S.C. § 5107(a). \"A
well grounded claim is a plausible claim, one which is meritorious on
its own or capable of substantiation. Such a claim need not be
conclusive but only possible to satisfy the initial burden of \[38
U.S.C. § 5107(a)\].\" *Murphy v. Derwinski*, 1 Vet.App. 78, 81 (1990).
Whether a claim is well grounded is a question of law subject to de novo
review by the Court. *See* *King v. Brown*, 5 Vet.App. 19 (1993).

Under the statutory structure of section 1728(a), certain clearly stated
preliminary threshold requirements must be established prior to the
consideration of the cumulative elements enunciated in subparagraphs (1)
through (3). These threshold requirements are as follows. First, the
claimant must be a veteran. Second, the veteran must be entitled to
hospital care or medical services under Chapter 17 of Title 38 of the
United States Code. Third, the veteran must have received such care or
services from sources other than VA. Fourth, such care or services must
have been rendered for payment. Once the four threshold requirements
have been satisfied, each of the three elements enunciated in
subparagraphs (1) through (3) must also be satisfied in order for an
appellant to be entitled to reimbursement of medical expenses under
section 1728(a).

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), 38 U.S.C. § 1710(a)(1)(A)
provides that \"the Secretary shall furnish hospital care . . . which
the Secretary determines is needed . . . to any veteran for a
service-connected disability.\" Further, section 1712(a)(1)(A) provides
that \"the Secretary shall furnish on an ambulatory or outpatient basis
such medical services as the Secretary determines are needed . . . to
any veteran for a service-connected disability.\" As the Secretary has
not disputed that the appellant sought needed treatment for a
service-connected disability, I would conclude that the second threshold
requirement has been satisfied. Thus, all four threshold requirements
have been satisfied.

If, after these threshold requirements have been met, the appellant
still must submit evidence of a medical emergency (subparagraph (1)) in
order for his claim to be well grounded under 38 U.S.C. § 1728(a) (as
the majority would require), then, because subparagraphs (1), (2), and
(3) are cumulative, he would also have to submit evidence of each of the
other two elements enumerated in subparagraphs (2) and (3) in order for
the claim to be well grounded. However, requiring a claimant to submit
evidence with respect to all four threshold requirements and all three
of the elements enumerated in subparagraphs (1) through (3) is almost
tantamount to requiring the appellant to establish entitlement to
reimbursement under section 1728(a), far too great a prerequisite for
submitting a well-grounded claim. *See* *Murphy, supra* (a well-grounded
claim need not be conclusive, only plausible)*; White v. Derwinski*, 1
Vet.App. 519, 521 (1991) (the threshold as to whether a claim is well
grounded is \"rather low\").

Recently, in *Robinette v. Brown*, \_\_ Vet.App.\_\_, No. 93-985, slip
op. at 10 (Sept. 12, 1994), the Court stated that \"as our . . .
jurisprudence . . . makes clear, to be well grounded a claim need not be
supported by evidence sufficient for the claim to be granted. Rather,
the law establishes only a ***preliminary*** threshold of plausibility
with enough of an evidentiary basis to show that the claim is capable of
substantiation.\" (Boldface italics in the original.) Because there is
not only plausible evidence as to the preliminary threshold requirements
of 38 U.S.C. § 1728(a), but indeed such preliminary threshold
requirements have been satisfied, I would hold that the appellant\'s
claim is well grounded and that the BVA erred when it concluded that the
appellant\'s claim was not well grounded.