Citation Nr: 1324449 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 09-41 226 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Mountain Home, Tennessee THE ISSUES 1. Entitlement to payment or reimbursement for unauthorized medical expenses incurred at Mountain States Health Alliance facility (Indian Path Medical Center) on September 22, 2008. 2. Entitlement to payment or reimbursement for unauthorized medical expenses incurred at Mountain States Health Alliance facility (Indian Path Medical Center) on October 9, 2008. 3. Entitlement to payment or reimbursement for unauthorized medical expenses incurred at Mountain States Health Alliance facility (Indian Path Medical Center) on October 11 and 12, 2008. 4. Entitlement to payment or reimbursement for unauthorized medical expenses incurred at Mountain States Health Alliance facility (Indian Path Medical Center) on October 22, 2008. 5. Entitlement to payment or reimbursement for unauthorized medical expenses incurred at Mountain States Health Alliance facility (Indian Path Medical Center) on December 12 and 13, 2008. 6. Entitlement to payment or reimbursement for unauthorized medical expenses incurred at Mountain States Health Alliance facility (Indian Path Medical Center) on December 16, 2008. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from October 1966 to October 1970. These matters come before the Board of Veterans' Appeals (Board) from February 2009 determination letters of the Department of Veterans Affairs (VA), Medical Center in Mountain Home, Tennessee. FINDINGS OF FACT 1. The Veteran was treated at a private emergency room at Mountain States Health Alliance (Indian Path Medical Center) on September 22, 2008, October 9, 2008, October 11 and 12, 2008, October 22, 2008, December 12 and 13, 2008, and December 16, 2008. 2. The evidence of record does not establish that the Veteran's condition at the time of his treatment on September 22, 2008, October 9, 2008, October 11 and 12, 2008, October 22, 2008, December 12 and 13, 2008, and December 16, 2008 was emergent in nature. 3. The evidence of record does not establish that a VA medical facility was not feasibly available on September 22, 2008, October 11 and 12, 2008, October 22, 2008, December 12 and 13, 2008, and December 16, 2008. CONCLUSIONS OF LAW 1. The criteria for payment or reimbursement for the costs of unauthorized private medical treatment, incurred on September 22, 2008 at Mountain States Health Alliance (Indian Path Medical Center), are not met. 38 U.S.C.A. §§ 1725, 1728, 5107 (West 2002); 38 C.F.R. §§ 3.102, 17.120, 17.1000-17.1008 (2012). 2. The criteria for payment or reimbursement for the costs of unauthorized private medical treatment, incurred on October 9, 2008 at Mountain States Health Alliance (Indian Path Medical Center), are not met. 38 U.S.C.A. §§ 1725, 1728, 5107 (West 2002); 38 C.F.R. §§ 3.102, 17.120, 17.1000-17.1008 (2012). 3. The criteria for payment or reimbursement for the costs of unauthorized private medical treatment, incurred on October 11 and 12, 2008 at Mountain States Health Alliance (Indian Path Medical Center), are not met. 38 U.S.C.A. §§ 1725, 1728, 5107 (West 2002); 38 C.F.R. §§ 3.102, 17.120, 17.1000-17.1008 (2012). 4. The criteria for payment or reimbursement for the costs of unauthorized private medical treatment, incurred on October 22, 2008 at Mountain States Health Alliance (Indian Path Medical Center), are not met. 38 U.S.C.A. §§ 1725, 1728, 5107 (West 2002); 38 C.F.R. §§ 3.102, 17.120, 17.1000-17.1008 (2012). 5. The criteria for payment or reimbursement for the costs of unauthorized private medical treatment, incurred on December 12 and 13, 2008 at Mountain States Health Alliance (Indian Path Medical Center), are not met. 38 U.S.C.A. §§ 1725, 1728, 5107 (West 2002); 38 C.F.R. §§ 3.102, 17.120, 17.1000-17.1008 (2012). 6. The criteria for payment or reimbursement for the costs of unauthorized private medical treatment, incurred on December 16, 2008 at Mountain States Health Alliance (Indian Path Medical Center), are not met. 38 U.S.C.A. §§ 1725, 1728, 5107 (West 2002); 38 C.F.R. §§ 3.102, 17.120, 17.1000-17.1008 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In Barger v. Principi, 16 Vet. App. 132 (2002), the United States Court of Appeals for Veterans Claims (Court) held that the Veterans Claims Assistance Act of 2000 (VCAA) is not applicable to cases involving the waiver of recovery of overpayment claims, pointing out that the statute at issue in such cases was not found in Title 38, United States Code, Chapter 51. Similarly, the statute in this matter is also not found in Chapter 51; rather it is in Chapter 17. However, in Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005), although not explicitly stated, the Court appeared to assume the VCAA is applicable to a Chapter 17 claim, but then held that the failure to comply with the VCAA notice requirements in that case constituted non-prejudicial error. In addition, the provisions of Chapter 17 of 30 U.S.C. and 38 C.F.R. contain their own notice requirements. Regulations at 38 C.F.R. §§ 17.120-33 (2012) discuss the adjudication of claims for reimbursement of unauthorized medical expenses. According to 38 C.F.R. § 17.124, the claimant has the duty to submit documentary evidence establishing the amount paid or owed, an explanation of the circumstances necessitating the non-VA medical treatment, and "other evidence or statements that are deemed necessary and requested for adjudication of the claim." When a claim for reimbursement of unauthorized medical expenses is disallowed, VA is required to notify the claimant of its reasons and bases for denial, his or her appellate rights, and to furnish all other notifications or statements required by Part 19 of Chapter 38. 38 C.F.R. § 17.132. Appropriate notice under the VCAA and § 17.124 was provided to the Veteran in February 2009 and May 2009. In this case, the Board finds that the development of medical evidence is complete. The Board notes that the October 11 -12, 2008 private records reflect that the Veteran reported that he had been seen at a VA facility at least six times in three weeks. Records from such treatment are not associated with the claims file; nevertheless, a remand to obtain them is not warranted. The issue of whether the appellant is entitled to reimbursement or payment of medical expenses, by its very nature, has an extremely narrow focus. Here, the only evidence necessary to decide the claim revolves around what transpired on specific dates and treatment at a private facility in September, October, and December 2008. The claims file includes the pertinent medical records from the specific dates and times of treatment with sufficient evidence for the Board to determine whether the treatments were rendered in an emergency situation. Thus, evidence which is necessary to decide the case is already of record. Additional evidentiary development would not change the outcome of the case. The appellant does not assert that there is additional evidence to be obtained or that there is a request for assistance that has not been acted on. Accordingly, the Board finds that no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the appellant. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claims. Essentially, all available evidence that could substantiate the claims has been obtained. Legal criteria Congress has authorized the reimbursement of costs for unauthorized emergency medical treatment under two statutory provisions, 38 U.S.C.A. § 1728 and 38 U.S.C.A. § 1725 (West 2002). 38 U.S.C.A. § 1728(a) Section 1728(a), Title 38, United States Code, provides that VA may pay or reimburse Veterans for medical expenses incurred in non-VA facilities 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, (B) for a non service-connected disability associated with and held to be aggravating a service-connected disability, (C) for any disability of a Veteran who has a total disability permanent in nature from a 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. 38 C.F.R. § 17.120. All three of these statutory requirements must be met before payment may be authorized. Hayes v. Brown, 6 Vet. App. 66, 68 (1993). With respect to whether or not an emergency existed, 38 U.S.C.A. § 1728 and 38 C.F.R. § 17.120 do not provide a definition of when an emergency exists. An emergency has been noted to be "a sudden, generally unexpected occurrence or set of circumstances demanding immediate action." Hennessey v. Brown, 7 Vet. App. 143, 147 (1994) (citing Webster's New World Dictionary, Third College Edition 444 (1988)). 38 U.S.C.A. § 1725, Veterans Millennium Health Care and Benefits Act The Veterans Millennium Health Care and Benefits Act, which became effective in May 2000, 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 who are personally liable for such non-VA treatment and not eligible for reimbursement under the provisions of 38 U.S.C.A. § 1728. See 38 U.S.C.A. § 1725 (West 2002); 38 C.F.R. § 17.1000-17.1008 (2012). To be eligible for reimbursement under this authority the Veteran has to satisfy all of the following conditions: (a) The emergency services were provided in a hospital emergency department or a similar facility held out as providing emergency care to the public. (b) The claim for payment or reimbursement for the initial evaluation and treatment is for a condition of such nature that a prudent layperson would have reasonably expected that delay in seeking medical attention would have been hazardous to life or health (this standard would be met if there were an emergency medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) that a prudent layperson who possesses an average knowledge of health and medicine could reasonably expect the absence of immediate medical attention to result in placing the health of the individual in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part); (c) A VA or other Federal facility/provider was not feasibly available and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson (as an example, these conditions could be met by 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); (d) The claim for payment or reimbursement for any medical care beyond the initial emergency evaluation and treatment is for a continued medical emergency of such a nature that the Veteran could not have been safely transferred to a VA or other Federal facility (the medical emergency lasts only until the time the Veteran becomes stabilized); (e) At the time the emergency treatment was furnished, the Veteran was enrolled in the VA health care system and had received medical services under authority of 38 U.S.C. Chapter 17 within the 24-month period preceding the furnishing of such emergency treatment; (f) The Veteran is financially liable to the provider of emergency treatment for the treatment; (g) The Veteran has no coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the emergency treatment (this condition cannot be met if the Veteran has coverage under a health-plan contract but payment is barred because of a failure by the Veteran or provider to comply with the provisions of that health-plan contract, e.g. failure to submit a bill or medical records within specified time limits, or failure to exhaust appeals of the denial of payment); (h) If the condition for which the emergency treatment was furnished was caused by an accident or work-related injury, the claimant has exhausted without success all claims and remedies reasonably available to the Veteran or provider against a third party for payment of such treatment; and the Veteran has no contractual or legal recourse against a third party that could reasonably be pursued for the purpose of extinguishing, in whole or in part, the Veteran's liability to the provider. (i) The veteran is not eligible for reimbursement under 38 U.S.C. 1728 for the emergency treatment provided (38 U.S.C. 1728 authorizes VA payment or reimbursement for emergency treatment to a limited group of Veteran's, primarily those who receive emergency treatment for a service-connected disability). Analysis The Veteran is seeking reimbursement for medical treatments he received in 2008. At the time of the Veteran's treatments he was not service connected for any disability, and he is not now service connected for any disability. Thus, the Veteran is not entitled to reimbursement under 38 U.S.C.A. § 1728, and the Board will consider whether reimbursement is warranted under 38 U.S.C.A. § 1725. The Board acknowledges the Veteran's March 2009 statement in which he stated that at the time of his hospital visits, a VA facility was not feasibly available. He stated that he "was in a lot of pain and had no idea what was going on." He further stated that he became very anxious and could not drive to the Tennessee Mountain Home VA Medical Center (VAMC) safely due to the pain and anxiety. The Board notes that the Veteran's home was approximately 23 to 30 miles from the Tennessee Mountain Home VAMC. His home was approximately five miles from the Mountain States Health Alliance Indian Path Hospital. Memoranda from a registered nurse, N.L., are associated with the claims file. They reflect that the Veteran's treatment was not emergent in nature. September 22, 2008 The clinical evidence of record reflects that the Veteran presented to the Mountain States Health Alliance facility (Indian Path Medical Center) at approximately 1:00 a.m. and was discharged at approximately 4:00 a.m. The Veteran was complaining of flank pain and stated that he had a history of kidney (renal) stones. The triage level was noted to be urgent, or a "3" on a scale of 1 to 5. His temperature was 97.6 degrees, his pulse oxygen level was 98 percent, his pulse was normal at 75, and his respirations were 18 with unlabored effort. His blood pressure was 140/79. The Veteran described the intensity of the pain as a level 7 and described it as aching and sharp. He arrived by himself by use of his privately owned vehicle. The record reflects that he reported the onset of pain as 4-12 hours previously, and the duration was noted to be one day. Upon inspection, he was lying still, his gastrointestinal system was tender to palpation, and he had hypoactive bowel sounds. The impression was renal colic and renal cyst. He was prescribed Lortab and fluids. Renal colic is defined as pain produced by thrombosis or dissection of the renal artery, renal infarction, intrarenal mass lesions, the passage of a stone within the collection system, or thrombosis of the renal vein. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (31st Ed. 2007). While the Veteran is competent to state how he felt on September 22, 2008, the Board finds that the objective medical records are more credible and probative with regard to the Veteran's actual physical state. The Board has also considered that the record reflects that the triage level was "urgent", which is midway between the triage levels of one through five. Notably, upon examination, the Veteran's temperature was 97.6 degrees, his pulse oxygen level was normal, his pulse was normal, and his respirations unlabored. While his blood pressure was noted to be 140/79; the records also reflect that the Veteran suffers from hypertension. With respect to whether or not an emergency existed, an emergency has been noted to be "a sudden, generally unexpected occurrence or set of circumstances demanding immediate action." Hennessey v. Brown, 7 Vet. App. 143, 147 (1994) (citing Webster's New World Dictionary, Third College Edition 444 (1988)). The evidence of record does not support that the Veteran's care was rendered in a medical emergency. The record reflects that after approximately 4 to 12 hours of pain, the Veteran decided to seek medical attention. He was able to drive himself to the emergency room. In addition, the record reflects that his psychiatric condition was noted to be "appropriate" rather than "anxious". The Veteran was sent home approximately three hours after arrival; there is no evidence of record that his condition constituted an emergency. The Board has also considered this was not the Veteran's first experience with renal stones. The record reflects that when he was at the emergency room, the Veteran reported that he had a history of renal stones. The evidence of record also reflects that the prior year, in February 2007, the Veteran had a calcified stone in the left renal pelvis. A February 2007 VA clinical record reflects that the Veteran reported left abdomen and flank pain for approximately two months and thought it might be a stone. He was given pain medication and sent home. Notably, the record reflects that the Veteran reported that he had had kidney stones "off and on for about 30 years." Thus, his flank pain in 2008 was not a generally unexpected occurrence or set of circumstances; it can be reasonably found that the Veteran was familiar with the pain caused by a stone, and the nature of the disability. Reimbursement would be warranted if all of the above stated conditions have been met, to include that such care or services of emergency treatment were rendered in a medical emergency of such nature that delay would have been hazardous to life or health. The Board finds that this element has not been met. The evidence does not reflect that the a prudent layperson could reasonably expect the absence of immediate medical attention to result in placing the health of the individual in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. Moreover, the evidence does not reflect that a VA facility was not feasibly available. October 9, 2008 The clinical evidence of record reflects that the Veteran presented to the Mountain States Health Alliance facility (Indian Path Medical Center) at approximately 1:00 a.m. and was discharged at approximately 3:10 a.m., two hours later. The Veteran was complaining of "ongoing [back] pain with nausea and weakness for past three weeks". He arrived at the hospital by emergency medical services (EMT). The clinical record reflects that he was calm, his blood pressure was 115/69, and his pulse was 104 with a normal character. His respirations were 18 and unlabored. His pulse oxygen level was 95 percent, and his temperature was 98 degrees. The pain was described as a 10 in intensity and as aching. The triage level was described as "semi-urgent", or a "4" on a scale of 1 to 5. The symptoms were also described as being two weeks in duration with a gradual onset, and continuous in nature. He had nausea, but no vomiting or sweats. It was noted that he had weight loss and night sweats, and had icteric sclera, melena, hematochezia, dysuria, and back pain. He was discharged alone in stable condition with instructions to be seen by his primary medical doctor in 7 - 10 days. The impression was nausea. In his March 2009 statement the Veteran stated that he had called an ambulance to take him to the Mountain Home facility but that the "Mountain Home ER was on diversion so EMS took me to Indian Path. I advised staff there I was a veteran." The mere fact that the Veteran was transported by ambulance does not render the situation an actual emergency. While emergency transportation is considered, it is not necessarily determinative of the nature of the situation. The evidence reflects that the Veteran had been in pain for two to three weeks. Thus, he did not have a sudden unexpected situation. In addition, based on the Veteran's history, to include his emergency room visit 17 days earlier, a prudent layperson would have not have reasonably expected that delay in seeking medical attention would have been hazardous to life or health. The Veteran did not have acute symptoms such that a prudent layperson could reasonably expect serious jeopardy serious impairment to bodily functions, or serious dysfunction of any bodily organ or part, would result if he did not seek immediate medical attention. As noted above, the Veteran stated that he called an ambulance to take him to the Mountain Home facility but the "Mountain Home ER was on diversion so EMS took me to Indian Path." An emergency room (ER) diversion is when an ambulance is redirected from one hospital emergency room to another. There is no objective evidence of record to support the Veteran's contention. Nevertheless, assuming that that a VA facility was not feasibly available, such a fact is not relevant in this case because the Veteran's situation was not emergent. October 11 and 12, 2008 The clinical evidence of record reflects that the Veteran presented to the Mountain States Health Alliance facility (Indian Path Medical Center) at approximately 8:45 p.m. The Veteran reported back pain with no injury. It was noted that the Veteran had recurrent right flank pain and had been diagnosed on October 3 at the VA with cysts on his kidney and had been started on antibiotics. No stones were noted on radiology. It was further noted "here twice this week, at VA 6 times in 3 [weeks]. Pain has [decreased] while waiting for triage. The triage level was described as "semi-urgent". The Veteran's blood pressure was 101/74, his pulse was 97, his respirations were 18, and his pulse oxygen was 96 percent. He arrived at the facility by himself in his privately owned vehicle. He was described as calm. His pain was described as moderate having begun one day prior with a gradual onset and continuous in nature. He was diagnosed with renal colic and discharged at 1:40 a.m. to his home in satisfactory condition with a pain rating of 1 to 2 out of 10. The Veteran's vital statistics at the ER, his description of his pain as moderate, and his description of the pain as having a gradual onset beginning the previous day are all evidence against a finding that his situation was emergent. October 22, 2008 The clinical evidence of record reflects that the Veteran presented to the Mountain States Health Alliance facility (Indian Path Medical Center) at approximately 5:34 a.m. The Veteran reported left sided pain which had started the previous evening at approximately 7:00 p.m. It was noted that he reportedly took Percocet with a small amount of relief. He also reported that he had nausea. The triage level was noted to be "urgent", or a level 3. His blood pressure was 110/67; his pulse was 96 and normal, his respirations were 20 and unlabored, his pulse oxygen level was 96 percent, his temperature was 95.9, and the pain intensity was described as a 10 and sharp in nature. He arrived at the facility by his own vehicle. He was described as calm. An October 22, 2008 final radiology report reflects that the Veteran had left flank pain with a history of renal stones. The impression was "no acute abdominal process visualized radiographically." He was treated with Toradol and discharged at approximately 7:20 a.m. in satisfactory condition with a pain rating of 7 out of 10. The Board acknowledges that the Veteran reported his pain as a level 10; however, the Veteran's vital statistics at the ER, his history of renal stones, and his report of 10 hours of pain prior to seeking treatment are evidence against a finding that his situation was emergent or that a prudent lay person would think it was emergent. In addition, the record reflects that there were no complaints with regard to the cardiovascular system or respiratory system. December 12 and 13, 2008 The clinical evidence of record reflects that the Veteran presented to the Mountain States Health Alliance facility (Indian Path Medical Center) and reported that he had a three month history of gradual onset of right and left flank pain which was sharp. He also reported nausea, vomiting, fever, diarrhea, and anorexia, and hematuria. It was noted that he had a history of weight loss, night sweats, icteric sclera, melena, hematochezia, dysuria, discharge, and back pain. His vital signs were normal and his appearance was "well." His psychiatric condition was appropriate. The impression was back pain and renal cysts. There were no complaints with regard to the respiratory system, gastrointestinal system, musculoskeletal system, cardiovascular system, or psychological system. The pain severity was described as a 10 on a scale of 0 to 10. A December 12, 2008 final radiology report reflects that the Veteran had left flank pain. The impression was "left nephrolithiasis. Right renal cyst. No ureteral stone is seen." The Veteran was prescribed medication and informed to call his primary medical doctor. The Board acknowledges that the Veteran described his pain was a 10 out of 10 in severity, and that he reported other symptoms, such as nausea. However the Board finds it more probative that his vital signs were normal, and that there were no complaints with regard to the respiratory system, gastrointestinal system, musculoskeletal system, cardiovascular system, or psychological system. In addition, he reported a three month history of gradual onset of pain. All of the aforementioned are evidence against finding that his situation was emergent, or that a prudent lay person would think it was emergent. December 16, 2008 The clinical evidence of record reflects that the Veteran presented to the Mountain States Health Alliance facility (Indian Path Medical Center) and reported diffuse sharp mild pain. It was further noted that he had been seen on December 12, 2008 for the same complaints. It was noted that he had a history of weight loss, night sweats, icteric sclera, melena, hematochezia, dysuria, discharge, and back pain. There were no complaints with regard to the respiratory system, cardiovascular system, musculoskeletal system, or genitourinary system. It was noted that he was dizzy. The impression was abdominal pain and renal cysts. A record reflects that he complained of nausea and abdominal pain at a rate of 7 on a scale of 0-10 and that he had pain for three weeks. It was further noted "no signs of distress". He was discharged home with prescriptions. The Veteran's lack of complaints with regard to the respiratory system, cardiovascular system, musculoskeletal system, or genitourinary system, his report of pain for three weeks in duration, the clinical finding of "no signs of distress", and the fact that he had been seen in the hospital approximately three to four days earlier and informed to follow up with his private provider, are all evidence against a finding that his situation was emergency or that a reasonably prudent person would think it was emergent. Conclusion The Veteran is not entitled to reimbursement for medical treatment on any of the above noted dates. The Veteran is competent to report symptoms such as pain, nausea, and weakness; however, such symptoms are not sufficient to render a situation an emergency. The available reports do not reflect that the treatment in question was for a sudden, generally unexpected occurrence or set of circumstances demanding immediate action or that a delay would have been hazardous to the Veteran's life or health. While, the Board acknowledges that the triage was listed as urgent or semi-urgent, such is not the highest level of triage. In addition, the Board gives considerable weight to the actual physical findings of the Veteran. The Board has considered the physical findings upon admission and also the treatment provided to the Veteran. Moreover, the memoranda from a registered nurse reflect that the Veteran's treatment was not emergent in nature. The record does not contain a medical opinion which finds that the treatment in question was rendered in a medical emergency. The Veteran's statement that he had to go the emergency room because he was very anxious and had "no idea what was going on" is less than credible given his lengthy history of treatment for renal stones and/or cysts. In addition, the record does not reflect that a VA facility was not feasibly available on the majority of occasions noted above (September 22, October 11 - 12, October 22, December 12 - 13, and December 16, 2008 ). While the Veteran has averred that he could not drive lengthy distance; the record does not reflect that a VA facility was feasibly unavailable. The closest VA medical facility to the Veteran's residence is approximately 23 to 30 miles. Although, the Veteran's travel to a VA facility would have taken longer than traveling the five miles to Indian Path Medical Center, the evidence of record does not indicate that a delay in treatment would have been hazardous to the Veteran's life or health, or that a prudent layperson would have reasonably expected that a delay in seeking medical attention would have been hazardous to life or health. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Therefore, entitlement to reimbursement for the cost of unauthorized private medical expenses incurred on September 22, 2008, October 9, 2008, October 11 and 12, 2008, October 22, 2008, December 12 and 13, 2008, and December 16, 2008 under 38 U.S.C.A. §§ 1725 and 1728 is not warranted. ORDER Entitlement to payment or reimbursement for unauthorized medical expenses incurred at Mountain States Health Alliance facility (Indian Path Medical Center) on September 22, 2008 is denied. Entitlement to payment or reimbursement for unauthorized medical expenses incurred at Mountain States Health Alliance facility (Indian Path Medical Center) on October 9, 2008 is denied. Entitlement to payment or reimbursement for unauthorized medical expenses incurred at Mountain States Health Alliance facility (Indian Path Medical Center) on October 11 and 12, 2008 is denied. Entitlement to payment or reimbursement for unauthorized medical expenses incurred at Mountain States Health Alliance facility (Indian Path Medical Center) on October 22, 2008 is denied. Entitlement to payment or reimbursement for unauthorized medical expenses incurred at Mountain States Health Alliance facility (Indian Path Medical Center) on December 12 and 13, 2008 is denied. Entitlement to payment or reimbursement for unauthorized medical expenses incurred at Mountain States Health Alliance facility (Indian Path Medical Center) on December 16, 2008 is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs