Citation Nr: 1335155 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 09-42 304A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Biloxi, Mississippi THE ISSUE Entitlement to VA reimbursement for the cost of unauthorized private medical services provided by Premier Medical Ear, Nose, and Throat Group, for the period extending from June 1998 to April 2003. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. Woodward Deutsch, Counsel INTRODUCTION The Veteran had active service in the United States Air Force from November 1973 to November 1977, and in the United States Navy from August 1980 to August 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from letter decisions of the Department of Veterans Affairs (VA), Fort Harrison VA Medical Center (VAMC), in Biloxi, Mississippi. In November 2010, the Veteran testified before the undersigned, who was authorized to conduct a hearing in support of the appeal. A transcript (Tr.) of the proceeding has been associated with the claims file. In September 2011, the Board denied the requested benefits. The Veteran submitted an appeal to the United States Court of Appeals for Veterans Claims (Veterans Court), which issued a February 2013 Memorandum Decision vacating the September 2011 denial and remanding the case to the Board for further action. In May 2013, the Board informed the Veteran of his right to submit additional evidence and argument in support of his claim. He has since submitted a written statement and copies of private and VA medical records, all of which are either cumulative or duplicative of the evidence previously of record. As such, the Board finds that a waiver of initial consideration by the agency of original jurisdiction (AOJ) is unnecessary in this instance and that appellate review of the Veteran's claim may proceed. 38 C.F.R. §§ 19.37, 20.1304 (2013). (CONTINUED ON NEXT PAGE) FINDINGS OF FACT 1. The Veteran was treated for allergies by a private medical provider (Premier Medical Ear, Nose, and Throat Group) from June 1998 to April 2003. 2. The Veteran was not authorized to receive VA reimbursement of the expenses that he incurred through Premier Medical Ear, Nose, and Throat Group. Nor did he request such authorization within 72 hours of any of his dates of treatment by that private medical provider. 3. The Veteran's unauthorized private medical treatment was not for a condition of such emergent nature that any delay in seeking care would have been hazardous to life or health, either objectively or as reasonably expected by a prudent layperson. 4. The Veteran's unauthorized private medical treatment was not for a condition for which VA or other Federal facilities were feasibly unavailable. Moreover, an attempt to use such facilities beforehand, or to obtain prior VA authorization for the services required, would not have been considered unreasonable (either objectively or as perceived by a prudent layperson), nor otherwise regarded as unsound, unwise, or impracticable. Further, there is no indication that the Veteran had or would have been refused VA treatment. 5. The Veteran has insurance to defray the costs of the unauthorized private medical treatment that he received. CONCLUSION OF LAW The criteria for VA reimbursement of the cost of unauthorized private medical services provided by Premier Medical Ear, Nose, and Throat Group, for the period extending from June 1998 to April 2003, have not been met. 38 U.S.C.A. §§ 1725, 1728 (West 2002 & Supp. 2013); 38 C.F.R. §§ 17.120, 17.130, 17.1002 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION As noted in the Introduction, the Veteran's claim for reimbursement of unauthorized private medical expenses was denied by the Board in a September 2011 adjudication, which the Veterans Court then vacated in a February 2013 Memorandum Decision. Accordingly, the Board is now obligated to address the specific contentions documented in that Memorandum Decision. Nevertheless, the Board finds that, for the reasons that follow, the overall evidence of record continues to warrant denial of the Veteran's claim. Duties to Notify and Assist Prior to addressing the merits of this appeal, the Board recognizes that VA has certain notice and assistance requirements, as set forth in the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). However, those specific requirements do not apply to claims, such as the one at issue, which fall outside the parameters of Title 38, United States Code, Chapter 51. Barger v. Principi, 16 Vet. App. 132 (2002). Nevertheless, the legal provisions that govern the Veteran's claim - found in Title 38, United States Code, Chapter 17, and 38 C.F.R Part 17 -- contain their own notice and assistance requirements. Specifically, those provisions direct that VA furnish detailed information about the laws governing claims for payment or reimbursement of unauthorized medical expenses, as well the duties of claimants to submit evidence in support of such claims. 38 C.F.R. § 17.120-33 (2013). Additionally, those provisions mandate that, when a claim for payment or reimbursement of unauthorized medical expenses is denied, VA must notify the claimant of the reasons and bases for the denial and of his or her appellate rights, while furnishing all other notifications or statements required by Part 19 of Chapter 38. 38 C.F.R. § 17.132 (2013). In this case, VA met the aforementioned requirements through a January 2007 letter, which informed the Veteran that he should inform the AOJ of any additional evidence that he wanted VA to attempt to obtain on his behalf and to provide a signed authorization for the release of such information. The January 2007 letter also advised the Veteran to send copies of any relevant evidence in his possession, and informed him that he could also obtain relevant records and submit them himself. In addition, following the initial adjudication, the Veteran was duly apprised of the reasons and bases for the denial of his claim. He has since been further apprised of those reasons and bases in subsequent AOJ and Board adjudications. Significantly, there is no indication that additional notice or development would aid the Veteran in substantiating his claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013). Thus, any deficiency of notice, or of the duty to assist, in this case is tantamount to harmless error. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). Having thus established that additional efforts to assist or notify the Veteran would serve no useful purpose, the Board finds that he is not prejudiced by appellate review of his claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). Accordingly, the Board now turns to the merits of that claim. Contentions and Pertinent Facts The Veteran seeks reimbursement for private medical expenses incurred at the Premier Medical Ear, Nose, and Throat Group (Premier Medical Group), where he was treated for allergies from June 1998 to April 2003. After receiving the above treatment, the Veteran was personally billed for the costs of the care provided by Premier Medical Group. A portion of those costs were paid by Tri-Care, which had insured the Veteran since his retirement from active service. For those expenses that Tri-Care did not cover, the Veteran presented bills to VA for reimbursement. However, the Biloxi VA Medical Center denied his claim on the grounds that the treatment in question was non-emergent in nature and that a reasonably available VA facility could have provided the same type of treatment. Subsequently, the Veteran was notified that, under applicable law, VA had no authority to pay any deductible amount, or any amount not covered by his private medical insurance. See Veterans Millennium Health Care and Benefits Act, Pub. L, No. 106-177, 113 Stat. 1553 (1999) (effective May 29, 2000) of Section 1725, Title 38, United States Code. The record thereafter shows that the Veteran has contested the denial of his medical reimbursement claim by arguing that he initially sought treatment for allergies at the Biloxi VA Medical Center, but was told that this facility could only provide certain immediate care and that he would have to seek other outpatient treatment through a private health care provider. The Veteran also has alleged that a treating provider at the VA clinic in Mobile, Alabama, informed him that "there was nothing more [that facility] could do" for his allergies and that he would need to seek treatment elsewhere. See Board Hearing Tr. at 4. Nevertheless, the Veteran has acknowledged that he did not seek VA's referral for private treatment, but instead relied on his relatives to recommend a private treating provider. Id. In an effort to further bolster his claim, the Veteran has emphasized that the treatment he received from Premier Medical Group was for a service-connected disability, specifically, allergic sinusitis. However, he has not alleged that he is now, or has ever been, in receipt of a total disability rating, either for that condition or for any of his other service-connected disabilities (degenerative joint disease of the right knee; degenerative disc disease at C5-C7; degenerative joint disease of the left knee; low back syndrome; the residuals of a left inguinal herniorrhaphy; the residuals of hepatitis; symptomatic hallux valgus of the right foot; and the residuals of a right inguinal herniorrhaphy). Moreover, the record has not otherwise shown that the Veteran is entitled to a 100 percent disability rating, or to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). Applicable Law and Analysis In adjudicating a claim for reimbursement of private medical expenses, the Board must first make a factual determination as to whether VA granted prior authorization for the non-VA medical care that the claimant received in a private facility for the treatment received on any date in question. See 38 U.S.C.A. § 1703(a) (West 2002); see also 38 C.F.R. § 17.54 (2013). This is a factual, not a medical, determination. See Similes v. Brown, 5 Vet. App. 555 (1994). Next, the Board must consider the applicable legal provisions, which direct that, in connection with its statutory obligation to provide medical services, VA may contract for private hospital care in certain limited circumstances, including instances where a medical emergency exists. Specifically, under 38 U.S.C.A. § 1703(a), "[w]hen [VA] facilities are not capable of furnishing . . . the care or services required, the Secretary, as authorized in [38 U.S.C.A. § 1710], may contract with non-Department facilities in order to furnish" certain care, including: "[h]ospital care or medical services for the treatment of medical emergencies which pose a serious threat to the life or health of a veteran receiving medical services in a Department facility . . . until such time following the furnishing of care in the non-Department facility as the veteran can be safely transferred to a Department facility." 38 U.S.C.A. § 1703(a)(3) (West 2002); 38 C.F.R. § 17.52 (2013). Generally, the admission of a patient to a non-VA hospital at the expense of VA must be authorized in advance. 38 C.F.R. § 17.54 (2013); see Malone v. Gober, 10 Vet. App. 539, 541 (1997); see also General Counsel Opinion, VAOPGCCONCL 1-95, at 9 (Mar. 31, 1995) ("Authorization in advance is essential to any determination as to whether the Department is or is not going to furnish the contract care.") In the case of an emergency that existed at the time of admission, an authorization may be deemed a prior authorization if an application is made to VA within 72 hours after the hour of admission. 38 C.F.R. § 17.54 (2013). Here, there is no evidence that the Veteran sought and obtained proper authorization for VA payment of the expenses that he incurred through the Premier Medical Group for any of the treatment that he received from June 1998 to April 2003. The record also does not indicate that he contacted VA within 72 hours of any date of treatment by that private medical provider. Accordingly, the Board must conclude that prior authorization for private medical treatment received was not obtained pursuant to 38 C.F.R. § 17.54, and that payment is therefore not warranted for expenses incurred in conjunction with such treatment under 38 U.S.C.A. § 1703. The Board's analysis does not end here, however, as the Veterans Court has outlined a "second avenue for potential relief for a veteran entitled to VA care forced to obtain treatment at a non-VA facility." Malone, 10 Vet. App. at 541 (1997), quoting 38 U.S.C.A. § 1728(a) (West 2002). That alternate route is set forth in 38 U.S.C.A. § 1728, and provides that VA "'may, under such regulations as the Secretary shall prescribe, reimburse . . . for the reasonable value of such care or services . . . for which such veterans have made payment.'" Id. Pursuant to that statute, reimbursement of the costs of unauthorized private medical care or services is available only 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 service member 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 an appellant who has a total disability permanent in nature from a service-connected disability, or (D) for any illness, injury, or dental condition in the case of an appellant who (i) is a participant in a vocational rehabilitation program (as defined in section 3101(9) of this title), and (ii) is medically determined to have been in need of care or treatment . . . .; and (iii) [VA] or other Federal facilities were not feasibly available, and an attempt to use them beforehand would not have been reasonable, sound, wise, or practical. (3) VA or other Federal facilities were not feasibly available, and an attempt to use them beforehand, or to obtain prior VA authorization for the services required would not have been reasonable, sound, wise, or practicable, or treatment had been or would have been refused. 38 U.S.C.A. § 1728(a) (West 2002 and Supp. 2013); 38 C.F.R. § 17.120 (2013). Significantly, the Veterans Court has interpreted Congress's use of the conjunctive "and" in the statute, emphasized in the above quotation, to mean that "all three statutory requirements [must] be met before reimbursement [may] be authorized." Malone, 10 Vet. App. at 542, citing Cotton v. Brown, 7 Vet. App. 325, 327 (1995); Hayes v. Brown, 6 Vet. App. 66 (1993). A third avenue for reimbursement of unauthorized private medical expenses exists under 38 U.S.C.A. § 1725, which was enacted as part of the Veterans Millennium Health Care and Benefits Act, Pub. L. 106-117, Title I, Subtitle B, § 111, 113 Stat. 1556 (1999). Section 1725 contains criteria under which the costs of emergency services for nonservice-connected conditions in non-VA facilities will, under certain conditions, be reimbursed. Moreover, the statute's implementing regulation (38 C.F.R. § 17.1002) outlines nine conditions that must be met before payment or reimbursement of emergency services in non-VA facilities may be made: (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 (for example, if there is evidence establishing that an appellant was brought to a hospital in an ambulance and the ambulance personnel determined that the nearest available appropriate level of care was not 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 appellant could not have been safely transferred to a VA or other Federal facility (the medical emergency lasts only until the time the appellant becomes stabilized); (e) At the time the emergency treatment was furnished, the appellant was enrolled in the VA health care system and had received medical services under authority of 38 U.S.C.A. Chapter 17 within the 24-month period preceding the furnishing of such emergency treatment; (f) The appellant is financially liable to the provider of emergency treatment; (g) The appellant 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 appellant has coverage under a health-plan contract but payment is barred because of a failure by the appellant 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 appellant or provider against a third party for payment of such treatment; and the appellant 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 appellant's liability to the provider; and (i) The appellant is not eligible for reimbursement under 38 U.S.C.A. 1728 for the emergency treatment provided (38 U.S.C.A. 1728 authorizes VA payment or reimbursement for emergency treatment to a limited group of appellant's, primarily those who receive emergency treatment for a service-connected disability). 38 U.S.C.A. § 1725 (West 2002 and Supp. 2013); 38 C.F.R. § 17.1002 (2013). As with the provisions of 38 U.S.C.A. § 1728(a) and 38 C.F.R. § 17.120, failure to satisfy any of the above requirements precludes VA from paying unauthorized private medical expenses. 38 U.S.C.A. § 1725; 38 C.F.R. § 17.1002. Parenthetically, the Board observes that, while 38 U.S.C.A. § 1725 was amended effective February 1, 2010, those statutory revisions are not applicable in the instant case. See Pub. L. No. 111-137, § 1(a),(b), 123 State. 3495 (2010). Applying the foregoing legal criteria to the pertinent facts of record, the Board finds that, notwithstanding the concerns outlined in the February 2013 Memorandum Decision, the Veteran has not met the requirements for reimbursement of his unauthorized private medical costs under 38 U.S.C.A. § 1728(a), 38 U.S.C.A. § 1725, or any of their implementing regulations. Initially, the Veteran has not established that any of the treatment he received from Premier Medical Group was of an emergent nature. Indeed, while mindful of the concerns raised by the Veterans Court with respect to the September 2011 decision, which left open the question of whether the Veteran's initial private treatment might have been emergent, the Board now finds unequivocally that this was not the case. In this regard, the record reflects that the Veteran was diagnosed with a right spontaneous pneumothorax in February 1998 and that he then underwent surgery -- specifically, a right thoracoscopy with apical pleb resection and mechanical and chemical pleurodesis - and subsequent inpatient convalescence between February 27, 1998, and March 9, 1998. Nevertheless, by the end of that hospitalization, his respiratory condition was noted to have substantially improved. Thereafter, in late April and early May 1998, the Veteran sought additional VA treatment for itching around the eyes and localized redness, suggestive of allergic rhinitis. Significantly, however, there was no indication that any of those symptoms were of an emergent nature. Nor were any emergent symptoms noted in the Veteran's initial report of treatment with Premier Medical Group. That June 1998 treatment report reflects that he had a history of allergies, manifested by itchy, watery eyes, excessive sneezing, and nasal congestion, and that his current symptoms included nasal congestion consistent with a diagnosis of allergic rhinitis. Notably, however, that report expressly indicates that the Veteran's lungs were clear and that he was free from any other respiratory abnormalities, including any complications arising from his prior hospitalization. The Board recognizes that, at the time of the Veteran's initial private treatment - as well as on subsequent occasions of such treatment --he may have been concerned about the impact of his allergies on his previously treated lung condition. However, that does not mean that on any of those occasions he believed his life to be in danger, or that he otherwise believed that he was experiencing a medical emergency. Nor does the other contemporaneous evidence of record suggest that such a belief was warranted. In arriving at this conclusion, the Board has carefully considered a May 2004 written statement from one of the Veteran's treating providers at Premier Medical Group. See May 6, 2004, Statement from "J.R.S., Jr., M.D." That clinician's statement, as noted by the Veterans Court in its Memorandum Decision, indicates that the Veteran's medical condition had been steadily worsening prior to his receipt of immunotherapy, which, in combination with Allegra, had greatly improved his symptoms. However, while indicative of fluctuating symptoms during the relevant treatment period, that clinician's statement does not suggest that the Veteran's condition, even at its worst, qualified as emergent for VA purposes. The Board recognizes that the Veteran has alleged otherwise, both in written statements and appellate hearing testimony. However, the Board considers such assertions, rendered in the pursuit of VA benefits, to be less probative and persuasive than the Veteran's prior statements, and those of his treating providers, which have been transcribed in his medical records. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made for the purposes of medical treatment may be afforded greater probative value because there is a strong motive to tell the truth to receive proper care). None of those prior statements offers any indication that the Veteran was experiencing a medical emergency on any of his dates of treatment with Premier Medical Group. Accordingly, the Board finds that the evidence of record does not establish that any of the treatment that the Veteran received from Premier Medical Group was for a medical emergency of such a nature that a delay would have been hazardous to his life or health. See 38 U.S.C.A. § 1728; 38 C.F.R. § 17.120(b). Nor would a prudent layperson have reasonably expected that to be the case, on the basis of the facts presented. See 38 U.S.C.A. § 1725; 38 C.F.R. § 17.1000-08. Even if the foregoing requirements had been satisfied, however, the Veteran would still be barred from medical reimbursement under the provisions of 38 U.S.C.A. § 1728 and 38 U.S.C.A. § 1725. In this regard, the Board acknowledges that the treatment he received from Premier Medical Group was for symptoms that were reasonably contemplated in his award of service connection for allergic sinusitis. Moreover, while it is unclear whether that treatment was provided in a hospital emergency department, or in a similar facility held out as providing emergency care to the public, it is apparent that, at the time such treatment was furnished, the Veteran had enrolled in the VA health care system and had received medical services under the provisions of 38 U.S.C.A. Chapter 17 within the previous 24-month period. Likewise, it is apparent that the Veteran remains financially liable to Premier Medical Group for the unauthorized private treatment that he received. However, while such findings comport with several of the provisions in 38 U.S.C.A. § 1728; the other requirements outlined in that statute, and in 38 U.S.C.A. § 1725 and the applicable implementing regulations, have not been met. In particular, the Veteran has not presented probative evidence that VA or other Federal facilities were unavailable to him, or that an attempt to use such facilities beforehand would not have been considered reasonable by a prudent layperson. To the contrary, while he now alleges that he was told by VA clinicians that they were unable to treat his allergic conditions, his contentions are not corroborated by any of the VA medical records preceding his treatment at Premier Medical Group. The Board assumes that, had those VA clinicians arrived at such a significant conclusion, they would have noted as much in the Veteran's medical records. Indeed, there is a presumption of regularity that VA officials, including medical personnel, perform their official duties correctly, fairly, in good faith, and in accordance with law and governing regulations. See Marsh v. Nicholson, 19 Vet. App. 381, 385 (2005); see also Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2009) (applying the presumption of regularity to the competence of VA examiners). As such, without a more substantial showing that VA treatment options were exhausted in this case, the Board is unable to presume that it was no longer feasible for the Veteran to seek medical care for his allergies at a VA facility, either objectively or under the standard of what would be considered reasonable by a prudent layperson. Clearly, the Veteran believes that he received superior treatment for his allergies at Premier Medical Group, relative to that which he would have obtained through the VA health care system. However, his own impressions in this regard - regardless of how well-founded - are not indicative of whether VA treatment options were feasibly available to him. Nor is any of the other evidence that the Veteran has presented in support of his claim, including the May 2004 statement authored by his private medical provider. See May 6, 2004, Statement from "J.R.S., Jr., M.D." That statement indicates, in pertinent part, that the Veteran would have experienced a considerable deterioration of his overall health and respiratory status but for the care he received through Premier Medical Group. Significantly, however, the private clinician does not appear to have based his opinion on any demonstrable knowledge of the services available through the VA health care system. Indeed, there is no indication that his opinion was predicated on any evidence apart from his own treatment of the Veteran and the latter's subjective complaints. As such, that private clinician's opinion does not reflect a full knowledge of the pertinent facts at issue. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-03 (2008) (applying the Federal Rules of Evidence to find that the probative value of a medical opinion depends on whether the opining clinician is fully informed of the pertinent facts, i.e., history, of the case). Even if the above clinician's statement had been based on a comprehensive review of the record, and was therefore probative in this instance, such opinion evidence, on its face, would still be insufficient to establish the unavailability of VA treatment under either the objective or the prudent layperson standard. That is because neither legal standard mandates reimbursement for unauthorized private treatment that objectively or subjectively exceeds the quality of care provided by VA. Instead, the provisions of 38 U.S.C.A. § 1728, 38 U.S.C.A. § 1725, and their implementing regulations allow for reimbursement only for unauthorized private treatment that is rendered as a patient's last resort. Such a determination is dependent on factors including whether the patient's medical condition, the relative distance of the travel to a VA facility, or the nature of the treatment required renders it necessary or economically advisable to use public or private facilities, or whether there is evidence establishing that the patient 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 facility. 38 C.F.R. §§ 17.52, 17.53, 17.1002(c) (2013). In this case, the Veteran has not submitted or otherwise alerted VA to the existence of evidence responsive to any of the factors contemplated in C.F.R. §§ 17.52, 17.53, and 17.1002(c). Thus, the Board has no basis to conclude that any of those factors have been met in his case. See generally Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that "[t]he duty to assist is not always a one-way street"). Nor does the Board have any basis to conclude that the Veteran is wholly reliant on VA to cover the costs of his private treatment. That is one of the key requirements of the Millennium Act, which stipulates that VA will be the payer of last resort for service members who usually get their care at a VA medical facility. Moreover, as noted previously, the Millennium Act limits reimbursement of private medical costs to patients who are not receiving care or services under any other health plan contract. 38 U.S.C.A. § 1725(b)(3)(B) (West 2002); 38 C.F.R. § 17.1002(g) (2013). Under the applicable law and implementing regulations, a "health plan contract" is defined to include an insurance program described in section 1811 of the Social Security Act (42 U.S.C. 1395c), or established by section 1831 of that Act (42 U.S.C. 1395j). 38 U.S.C.A. § 1725(f)(2)(B) (West 2002); 38 C.F.R. § 17.1001(a)(2) (2013). This includes the Tri-Care (military retirees' health insurance) program in which the Veteran is presently enrolled and under which he received coverage for a portion of his medical expenses accrued at Premier Medical Group. Clearly, not all of the Veteran's private medical costs were covered by Tri-Care, or he would not have sought reimbursement from VA. Nevertheless, the insurance coverage that the Veteran had, and apparently still receives, is sufficient to preclude the Board from granting his claim for reimbursement of his unauthorized private treatment costs. 38 U.S.C.A. § 1725; 38 C.F.R. § 17.1000-08. In summary, the Board finds that, even after addressing the contentions set forth in the February 2013 Memorandum Decision, it is still unable to award the benefits sought on appeal. Although sympathetic to the Veteran's efforts to seek reimbursement of his unauthorized private health care costs, the Board is without authority to grant such benefits simply to achieve a more equitable result. See 38 U.S.C.A. §§ 503, 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Indeed, "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)). In this case, there simply is no provision under which the Board may grant the Veteran's medical reimbursement claim. Therefore, the Board has no discretion but to deny that claim under the applicable statutes and regulations. (CONTINUED ON NEXT PAGE) ORDER Entitlement to reimbursement for the cost of unauthorized private medical services furnished by Premier Medical Ear, Nose, and Throat Group, for the period extending from June 1998 to April 2003, is denied. ____________________________________________ K. A. KENNERLY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs