# Hennessey v. Brown

> United States Court of Appeals for Veterans Claims · November 15, 1994 · 7 Vet. App. 143

URL: https://www.frixlaw.com/law-library/cases/6612108

## Case

- **Full name:** William J. HENNESSEY, Jr. v. Jesse BROWN, Secretary of Veterans Affairs
- **Court:** United States Court of Appeals for Veterans Claims
- **Decided:** November 15, 1994
- **Citations:** 7 Vet. App. 143; 1994 U.S. Vet. App. LEXIS 942; 1994 WL 636454
- **Precedential status:** Published
- **Opinion:** Dissent by Kramer
- **Judges:** Ivers, Kramer, Steinberg
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6612108

## Opinion text

KRAMER, Judge,
dissenting:
I would reverse the Board of Veterans’ Appeals (BVA) decision because the BVA’s factual findings regarding the requirements for and preclusion of reimbursement under 38 C.F.R. §§ 17.80 (b), (c), 17.89 (1993) (quoted in the majority opinion, ante at 146), were clearly erroneous. See Gilbert v. Derwinski, 1 Vet.App. 49 (1990); 38 U.S.C. § 7261 (a)(4). As I would decide this matter based on the assumption that the treatment at Yale-New Haven Hospital was unauthorized, the other issues which the majority would remand to the BVA need not be addressed.
While the BVA did not address whether the appellant needed the cardiac coronary bypass graft surgery (surgery), 38 C.F.R. § 17.80 (a), this need has not been disputed by either the BVA or the Secretary. Furthermore, the BVA acknowledged that the appellant has a total service-connected disability which is permanent in nature (schizophrenia) under 38 C.F.R. § 17.80 (a)(3). The BVA found, however, that: (1) the surgery was not rendered under such emergent circumstances that delay would have been hazardous to life or health (as required by 38 C.F.R. § 17.80 (b)); (2) VA facilities were feasibly available (their unavailability being a prerequisite for reimbursement pursuant to 38 C.F.R. § 17.80 (c)); and (3) the appellant chose to receive the treatment at a non-VA facility in preference to available VA care (thus precluding reimbursement under 38 C.F.R. § 17.89 ). In my view, all three of these findings are clearly erroneous.
The undisputed- facts are as follows: The appellant suffered a myocardial infarction and subsequent angina in November 1983, and an angiography performed at that time revealed a completely obstructed right coronary artery and moderate disease in the left anterior descending and left circumflex arteries (three vessel disease). R. at 13-15. He underwent yearly exercise stress tests which were negative until May 1988, when his test results were described by the Dr. Donald S. Ruffett as “borderline.” In May 1989, the appellant had what Dr. Ruffett described as a “markedly positive” exercise stress test. R. at 22. Shortly after that test, Dr. Ruffett wrote a letter stating that he strongly recommended a coronary angiography for the appellant “because of a severely abnormal treadmill test, which has changed significantly from his previous test.” R. at 50.
On June 20, 1989, the appellant, who was 65 years of age at the time, went to West Haven VA Medical Center with a complaint of exertional angina following his recent exercise stress test. R. at 22, 52, 55. On that date, the appellant noted an increase in his anginal symptoms and was admitted for elective cardiac catheterization. R. at 55. The results of the cardiac catheterization performed on June 22, 1989, as reported by Dr. C. Arnold, were as follows:
The patient had a normal left main. His left anterior descending had a 40-50% proximal stenosis [narrowing or stricture] and an 80% stenosis of the takeoff of a moderate sized diagonal branch. The AV groove circumflex had a 90% irregular lesion between a large obtuse marginal and a smaller obtuse marginal 2. The obtuse marginal one had a significant 70% proximal lesion, the obtuse marginal two had a 40% mid-lesion. The patient has a dominant RCA [right coronary artery] with an 80% proximal stenosis followed by a total *150 mid-occlusion [complete obstruction of the artery].
R. at 56. A schema of this described condition, showing blockages, drawn by Dr. Arnold, is reproduced as an appendix. See R. at 56, 80 (description and schema of blockages); Greer v. Spock, 424 U.S. 828 , 96 S.Ct. 1211 , 47 L.Ed.2d 505 (1976) (suit challenging restrictions on speech and press on military reservation; appendix of photographs of entrances to reservation and of respondents distributing pamphlets); Estes v. Texas, 381 U.S. 532 , 85 S.Ct. 1628 , 14 L.Ed.2d 543 (1965) (reversal of criminal conviction because of televising and broadcasting of trial; appendix of seven photographs showing activities of camera operators). Based on these findings, the diagnosis was “severe coronary artery disease with triple vessel disease.” R. at 55 (emphasis added). Dr. Arnold recommended that the appellant undergo cardiac coronary artery bypass graft surgery “in the near future” (R. at 56) and stated that the “[ojverall prognosis was good, given that the patient would have [the surgery] in the near future” (R. at 57). At that time, the appellant was offered a choice of either “going to another VA hospital with a lengthy waiting period” or to Yale-New Haven Hospital. R. at 124. At his choosing, the surgery was performed at Yale-New Haven Hospital on July 20, 1989. R. at 53, 141.
Factual findings by the BVA are subject to the “clearly erroneous” standard of review. See Harrison v. Principi, 3 Vet.App. 532 (1992); Gilbert, supra. In determining whether a finding is clearly erroneous, “this Court is not permitted to substitute its judgment for that of the BVA on issues of material fact; if there is a ‘plausible basis’ in the record for the factual determinations of the BVA ... we cannot overturn them.” Gilbert, 1 Vet.App. at 53 .
The first inquiry is whether the BVA’s finding that the surgery was not performed in a medical emergency had a plausible basis in the record. Given the appellant’s history at the time the surgery was performed which indicated that: (1) he was 65 years of age; (2) his coronary disease extended to three vessels; (3) his condition was diagnosed as “severe”; (4) he had two lesions (40-50% and 80%) in his anterior descending vessel, the first being high in vessel, and the second at mid-level (see R. at 80); and (5) he had exercise-induced angina which had significantly increased in severity; 1 and given Dr. Arnold’s uncontroverted expert opinion that the appellant’s prognosis was good provided that he had the surgery “in the near future,” the BVA’s finding that the surgery was not performed under emergent circumstances such that delay would have been hazardous to life and health had no plausible basis in the record and is, therefore, “clearly erroneous.” See Gilbert, 1 Vet.App. at 53 .
The second inquiry is whether the BVA’s finding that VA facilities were feasibly available had a plausible basis in the record. The only alternative to having surgery “in the near future” at Yale-New Haven Hospital was to wait for the surgery at a VA facility with a “lengthy waiting period.” (I note that the BVA, in determining that a VA facility was available to the appellant, stated only that there was a “waiting period,” apparently ignoring the modifying word “lengthy.” R. at 8.) Where, as here, the urgency of the appellant’s condition required surgery “in the near future” and a VA facility was not available without a “lengthy waiting period,” it is uncontroverted that: (1) the nature of the appellant’s medical condition and the nature of the surgery required to treat that condition made it necessary to perform the surgery at Yale-New Haven Hospital; and (2) an attempt to use or obtain prior authorization to use a Federal facility in the near future, or have treatment rendered by such facility in the near future, would have been a useless exercise which, under 38 C.F.R. § 17.80 (c), “would not have been reasonable, sound, wise, or practicable, [in that it clearly would have resulted in a situation in which] treatment ... would have been refused.” *151 Thus, the BVA’s finding that VA facilities were feasibly available had no plausible basis in the record and is, therefore, “clearly erroneous.” See Gilbert, supra.
The final inquiry is whether the BVA’s finding that the appellant chose to receive treatment at a non-VA facility in preference to available VA care had a plausible basis in the record. As the appellant could not have his surgery at a VA facility “in the near future” because no VA facilities were feasibly available, he had no choice but to receive treatment elsewhere. Thus, the BVA’s finding that the appellant chose to receive treatment at a non-VA facility in preference to available VA care also has no plausible basis in the record and is, therefore, “clearly erroneous.” See Gilbert, supra.
The Court’s single-judge memorandum decision reversing the July 13, 1992, BVA decision should be sustained.
*152 APPENDIX
[[Image here]]
. Merck Manual 504 (16th ed. 1992) states that the major risks of coronary artery disease are unstable angina, myocardial infarction, and sudden death. Major factors which influence prognosis include age, extent of coronary disease, and severity of symptoms, and prognosis is better in patients with mild or moderate angina than in those with severe exercise-induced angina. Lesions high in the anterior descending vessel carry a particularly high risk.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6612108. Public record. Not legal advice.