Citation Nr: 1237339 Decision Date: 10/31/12 Archive Date: 11/09/12 DOCKET NO. 11-20 644 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Medical Center (MC) in Houston, Texas THE ISSUE Entitlement to payment or reimbursement for the cost of unauthorized private medical expenses incurred on February 9, 2009 (the issue of entitlement to automobile or adaptive equipment is the subject of a separate Board decision). REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J.B. Freeman, Counsel INTRODUCTION The Veteran served on active duty from August to October 1981, from April to September 1984 and from November 1985 to March 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the VAMC in Houston, Texas, which denied reimbursement for unauthorized medical expenses in February 2009. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. The Veteran requested a personal hearing before a Member of the Board at the RO in his July 2011 substantive appeal. The Veteran failed to report for his scheduled hearing in February 2012 without cause. The request is deemed withdrawn. The Board may proceed. 38 C.F.R. § 20.704(d) (2011). FINDING OF FACT The Veteran's surgery on February 9, 2009, was not due to or the result of an emergency. CONCLUSION OF LAW The criteria for payment or reimbursement of unauthorized medical expenses arising from care provided at a non-VA facility on February 9, 2009, have not been met. 38 U.S.C.A. §§ 1725, 1728, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 17.120, 17.121, 17.1000, 17.1001, 17.1002 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Reimbursement for Unauthorized Medical Expenses The Veteran seeks reimbursement for costs related to a February 2009 surgery performed by a non-VA hospital. In general, to establish eligibility for payment or reimbursement of medical expenses incurred at a non-VA facility, a claimant must satisfy three conditions. Among other requirements, there must be a showing that the services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health. See 38 U.S.C.A. § 1728; 38 C.F.R. § 17.120(b); see also Zimick v. West, 11 Vet. App. 45, 49 (1998). Failure to satisfy any of the criteria listed above precludes VA from paying unauthorized medical expenses incurred at a private facility. Zimick, 11 Vet. App. at 49. In the alternative, the Veterans Millennium Health Care and Benefits Act, which became effective in May 2000, also provides general authority for reimbursement for the reasonable value of emergency treatment furnished in a non- Department facility to those veterans who are active Department health-care participants (enrolled in the annual patient enrollment system and recipients of Department hospital, nursing home, or domiciliary care under such system within the last 24-month period) and who are personally liable for such treatment and not eligible for reimbursement under the provisions of 38 U.S.C.A. § 1728. See 38 U.S.C.A. § 1725. To be eligible for reimbursement under this law, eight conditions must be met including, in relevant part, that emergency services were provided in a hospital emergency department or a similar facility providing emergency care. 38 C.F.R. § 17.1002(a) (2011). Since all criteria must be met, the claim must be denied if there is a failure to satisfy any single criterion. The Veteran argues that he should be reimbursed because he discussed obtaining surgery through a non-VA provider with the VA fee-basis program personnel. He contends that the person he spoke to promised that VA would pay for or otherwise reimburse him for the expense. The Board is sympathetic to the Veteran's report that a VA employee mislead or confused him regarding his eligibility for reimbursement. The Veteran is competent to report that he received erroneous advice. Even if the Veteran were given erroneous advice and this constituted administrative error, "VA would not be bound to grant benefits due to this administrative error." Owings v. Brown, 8 Vet. App. 17, 23 (1995), aff'd 86 F.3d 1178 (Fed. Cir. 1996)(table). VA's Secretary does have the power to grant equitable relief in certain circumstances. See 38 U.S.C.A. § 503 (West 2002). In the circumstances of this case, however, the Board finds that the Veteran's general allegation of having received erroneous advice that he would be reimbursed for his right foot surgery regardless of whether such surgery was emergency in nature does not warrant referral of the matter to the Secretary for consideration of the provision of equitable relief. See Chairman's Memorandum No. 01-96-21 (June 11, 1996). The Veteran scheduled and underwent a surgery on his right foot to correct a bunion. The Veteran does not allege that it was an emergency. A physician's opinion was obtained and the physician indicated that it was elective and not an emergency. As such, the evidence fails to establish the second criterion under 38 U.S.C.A. § 1728 and fails to establish criterion (a) under 38 U.S.C.A. § 1725. See 38 C.F.R. §§ 17.120, 17.1002. The Board therefore finds that the preponderance of the evidence is against the Veteran's claim, and the benefit-of-the-doubt rule is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). Moreover, even if there were administrative error of the type alleged by the Veteran, the Board has determined that referral to the Secretary to determine whether equitable relief is warranted under 38 U.S.C.A. § 503 is not warranted. The claim must therefore be denied. Duties to Notify and Assist VA has obligations in terms of duties to notify and assist claimants. Because the claim in this case is governed by the provisions of Chapter 71 of Title 38 of the United States Code, the Veterans Claims Assistance Act (VCAA) and its implementing regulations are not applicable. See Barger v. Principi, 16 Vet. App. 132, 138 (2002) and Lueras v. Principi, 18 Vet. App. 435 (2004). The Veteran was provided adequate notification under the duty to notify in March 2010 prior to adjudication of this case. Similarly, there are no outstanding records that VA might assist in obtaining. The Veteran was provided opportunities to provide pertinent evidence in support of his claim and he has provided pertinent evidence and argument in response to these overtures. Further development and expending of VA's resources is therefore not warranted. ORDER Entitlement to payment or reimbursement for the cost of unauthorized private medical expenses incurred on February 9, 2009, is denied. ____________________________________________ J. HAGER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs