B-178894, MAR 28, 1974

B-178894, MAR 28, 1974

ARMY RESERVIST ON ACTIVE DUTY FOR TRAINING WHO SUFFERED SYNCOPAL SPELL WHICH HE CLAIMS MILITARY DOCTOR INCORRECTLY DIAGNOSED AS RECURRENCE OF PREVIOUS PNEUMONIA, AND WHO LATER HAD CALCIUM DEPOSIT ON AORTIC VALVE REMOVED BY CIVILIAN DOCTOR IN PRIVATE HOSPITAL CANNOT BE REIMBURSED FOR EXPENSES UNLESS INJURY OR DISEASE WAS INCURRED IN LINE OF DUTY AND SUCH CARE WAS APPROVED BY THE APPROPRIATE ARMY AUTHORITY. SEE 10 U.S.C. 3721 AND ARMY REGULATIONS 40-3. WHERE ARMY RESERVIST ON ACTIVE DUTY FOR TRAINING CLAIMS THAT MILITARY DOCTOR FAILED TO PROPERLY TREAT OR DIAGNOSE A PREEXISTING CONDITION, IT IS PROBLEMATICAL THAT SUCH CIRCUMSTANCE COULD CONSTITUTE BASIS FOR QUALIFICATION FOR TREATMENT SUBSEQUENT TO SUCH DUTY, IT BEING NECESSARY TO SHOW THAT INJURY OR DISEASE SUBSEQUENTLY TREATED WAS INCURRED OR CONTRACTED IN LINE OF DUTY.

TO LT. COL. MAYNARD L. ROGERS:

REFERENCE IS MADE TO YOUR LETTER OF MAY 24, 1973, IN EFFECT REQUESTING REVIEW OF THE ACTION TAKEN BY OUR TRANSPORTATION AND CLAIMS DIVISION BY SETTLEMENT DATED APRIL 5, 1973.

YOUR CORRESPONDENCE REVEALS THAT DURING A MOBILIZATION ASSIGNMENT IN OCTOBER 1970 YOU SUFFERED A SYNCOPAL SPELL. YOU SAY YOU WERE EXAMINED BY A MILITARY DOCTOR WHO CONCLUDED THAT THE SPELL RESULTED FROM A RECURRENCE OF CHEMICAL PNEUMONIA FROM WHICH YOU HAD SUFFERED PREVIOUSLY. YOU WERE RETURNED TO DUTY AND COMPLETED YOUR ACTIVE DUTY FOR TRAINING TOUR. YOU INDICATE THAT SUBSEQUENTLY CIVILIAN DOCTORS DISCOVERED THAT YOU HAD A CALCIUM DEPOSIT ON THE AORTIC VALVE AND THAT YOU WERE OPERATED ON BY A CIVILIAN DOCTOR AND THAT YOUR EXPENSES AFTER INSURANCE PAYMENTS AMOUNTED TO $2,540.40. A CLAIM FOR THIS AMOUNT WAS DENIED IN THE SETTLEMENT NOTED ABOVE.

THE BASIS OF YOUR CLAIM APPEARS TO BE THAT THE MILITARY DOCTOR WHO EXAMINED YOU AFTER THE SYNCOPAL SPELL MADE AN INCORRECT DIAGNOSIS AND THAT A PROPER DIAGNOSIS WOULD HAVE RESULTED IN AN IMMEDIATE OPERATION, AT THE ARMY'S EXPENSE, TO REMOVE THE CALCIUM DEPOSIT.

HOSPITALIZATION BENEFITS FOR MEMBERS OF THE ARMY, OTHER THAN THE REGULAR ARMY, ARE GOVERNED BY 10 U.S.C. 3721. IN ACCORD WITH THIS STATUTORY AUTHORITY, ARMY REGULATIONS (AR) 40-3, PARAGRAPH 8, GOVERNING BASIC ELIGIBILITY FOR MEDICAL TREATMENT IN ARMY FACILITIES, IN RELEVANT PART, PROVIDES:

"MEMBERS OF THE UNIFORMED SERVICES RESERVES AND NATIONAL GUARD PERSONNEL. A. TREATMENT DURING AND AFTER TRAINING DUTY. MEMBERS OF THE UNIFORMED SERVICES RESERVES ON ACTIVE DUTY FOR TRAINING OR INACTIVE DUTY TRAINING AND NATIONAL GUARD PERSONNEL PERFORMING FULL-TIME TRAINING OR INACTIVE DUTY TRAINING ARE AUTHORIZED MEDICAL AND DENTAL CARE IN ARMY MEDICAL TREATMENT FACILITIES AS FOLLOWS:

"(1) WHILE ON ACTIVE DUTY FOR TRAINING OR FULL-TIME TRAINING DUTY, THEY ARE AUTHORIZED MEDICAL CARE WITHOUT REGARD TO WHETHER THE DISEASE OR INJURY WAS CONTRACTED OR INCURRED IN LINE OF DUTY.

"(2) AFTER EXPIRATION OF THE PERIOD OF ACTIVE DUTY FOR TRAINING OR FULL- TIME TRAINING DUTY SPECIFIED IN THEIR ORDERS, THEY ARE AUTHORIZED MEDICAL AND DENTAL CARE ONLY IF THE INJURY OR DISEASE WAS INCURRED OR CONTRACTED IN LINE OF DUTY WHILE ON THAT TRAINING OR DUTY, OR TRAVELING DIRECTLY TO OR FROM SUCH TRAINING OR DUTY."

PARAGRAPH 83, AR 40-3, MARCH 26, 1962, IN EFFECT AT THE TIME OF THE DESCRIBED HAPPENINGS, AUTHORIZES MEDICAL CARE FROM CIVILIAN SOURCES AT EXPENSE OF ARMY FUNDS WHEN CARE CANNOT BE PROVIDED BY MEDICAL TREATMENT FACILITIES OF THE ARMED FORCES OR BY OTHER FEDERAL MEDICAL TREATMENT FACILITIES. THE APPROVING AUTHORITY FOR PAYMENT OF SUCH EXPENSES FOR MEMBERS OF THE ARMY RESERVE IS THE APPROPRIATE CONTINENTAL UNITED STATES ARMY COMMANDER IN ACCORD WITH PARAGRAPH 87 OF THE REGULATIONS (FIGURE 2.1).

IT MAY BE TRUE AS YOU INDICATE THAT A MILITARY PHYSICIAN MADE AN INCORRECT DIAGNOSIS OF YOUR MEDICAL PROBLEM WHILE YOU WERE ON DUTY DURING A MOBILIZATION ASSIGNMENT AND THAT HAD A CORRECT DIAGNOSIS BEEN MADE AT THAT TIME YOU WOULD HAVE BEEN PROVIDED TREATMENT AT GOVERNMENT EXPENSE BEFORE YOUR RELEASE FROM ACTIVE DUTY. SUCH FACT, HOWEVER, DOES NOT ENTITLE YOU TO REIMBURSEMENT FOR MEDICAL TREATMENT PROVIDED BY A CIVILIAN PHYSICIAN AFTER RELEASE FROM YOUR ACTIVE DUTY MOBILIZATION ASSIGNMENT. THE ARMY CANNOT BE HELD RESPONSIBLE FOR THE INCORRECTNESS OF THE DIAGNOSIS MADE BY THE EXAMINING PHYSICIAN IN THE MANNER ASSERTED BY YOU.

AS SPECIFICALLY PROVIDED IN THE ABOVE REGULATION, THE ONLY TIME A MEMBER OF THE RESERVE IS ENTITLED TO MEDICAL TREATMENT AFTER RELEASE FROM A PERIOD OF ACTIVE DUTY OR TRAINING DUTY IS WHEN HIS INJURY OR DISEASE IS ACTUALLY INCURRED IN LINE OF DUTY WHILE ON ACTIVE OR TRAINING DUTY OR WHILE TRAVELING TO OR FROM SUCH DUTY. IN THE ABSENCE OF A DETERMINATION (A DETERMINATION ORDINARILY MADE BY THE COMMANDER OF THE UNIT TO WHICH A MEMBER IS ASSIGNED) THAT YOUR MEDICAL PROBLEM WAS ACTUALLY CONTRACTED IN LINE OF DUTY AND APPROVAL OF YOUR TREATMENT AT A CIVILIAN MEDICAL FACILITY, THERE IS NO BASIS UPON WHICH FAVORABLE CONSIDERATION MAY BE ACCORDED YOUR CLAIM. SEE DECISION B-175350, JUNE 19, 1972, COPY ENCLOSED.