Citation Nr: 1338135	
Decision Date: 11/20/13    Archive Date: 12/06/13

DOCKET NO.  13-17 034	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Gainesville, Florida


THE ISSUE

Entitlement to payment or reimbursement for medical expenses incurred at unauthorized emergency treatment at Doctors Memorial Hospital in Perry, Florida on December 26, 2012.


ATTORNEY FOR THE BOARD

Mary E. Rude, Associate Counsel


INTRODUCTION

The Veteran had active military service from February 4, 1983 to February 25, 1983 and January 1985 to February 1990.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs Medical Center (VAMC) in Gainesville, Florida.

The Board notes that the appellant does not currently have a file on the Virtual VA electronic data storage system.


FINDINGS OF FACT

1.  The Veteran received unauthorized emergency treatment at Doctors Memorial Hospital on December 26, 2012.

2.  The Veteran is not service connected for any disease or disability.

3.  The Veteran had not received treatment at a VA medical facility within the 24-month period preceding the furnishing of the emergency medical services on December 26, 2012.


CONCLUSION OF LAW

The criteria for entitlement to payment or reimbursement of unauthorized emergency treatment at Doctors Memorial Hospital on December 26, 2012 have not been met.  38 U.S.C.A. §§ 1703, 1725, 1728 (West 2002 & Supp. 2013); 38 C.F.R. §§ 17.54, 17.120, 17.1000-1008 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and implemented in part at 38 C.F.R § 3.159 (2013), amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.

The United States Court of Appeals for Veterans Claims has held that the statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of the claim is based on statutory interpretation, rather than consideration of the factual evidence.  Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001).  As the law is dispositive in the instant claim, further discussion regarding VA's duties pursuant to the VCAA is not required.

Notwithstanding the above, the Veteran was provided a VCAA letter in May 2013.  The Veteran has not disputed the findings regarding his non-service connected status or the fact that he had not received VA care within the 24-month period of his unauthorized private treatment.  VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render a veteran ineligible for the claimed benefit.

Analysis

The Veteran received unauthorized emergency treatment at Doctors Memorial Hospital in Perry, Florida for an infection of the bilateral hands on December 26, 2012.  He seeks VA payment or reimbursement for these expenses.

The law provides two related, but independent avenues for obtaining payment or reimbursement for expenses where care was not previously authorized.

Under 38 U.S.C.A. § 1728(a), and its implementing regulation, 38 C.F.R. § 17.120, 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; or (D) for any illness in the case of a veteran who is a participant in a vocational rehabilitation program that necessitates care or treatment to make possible such veteran's entrance into a course of training, prevent interruption of such course of training, or hasten the return to such course of training; 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.  The United States Court of Appeals for Veterans Claims has held that all three of these statutory requirements must be met before payment may be authorized.  Zimick v. West, 11 Vet. App. 45, 49 (1998).

In this case, the Veteran is not service connected for any disease or disability, and he is not a participant in a vocational rehabilitation program.  As he does not meet criteria of 38 U.S.C.A. § 1728(a), the Veteran is not eligible for VA payment or reimbursement for the unauthorized medical expenses in question under 38 U.S.C.A. § 1728.

When a veteran is not eligible under 38 U.S.C.A. § 1728, he/she may nevertheless obtain payment or reimbursement under 38 U.S.C.A. § 1725.  The implementing regulation of 38 C.F.R. § 17.1002, entitled "Substantive conditions for payment or reimbursement," requires that all the enumerated conditions be met for eligibility consideration.  One of the conditions precedent requires the veteran to have been an "active Department health-care participant."  38 U.S.C.A. § 1725(b).  This condition is met if the Veteran (1) is enrolled in the VA health care system and (2) has received medical services under authority of 38 U.S.C. Chapter 17 within the 24-month period preceding the furnishing of such emergency treatment.  38 U.S.C.A. § 1725(b)(2)(B); 38 C.F.R. § 17.1002(d) . 

The VAMC's research indicates that the Veteran had not received any VA care within the 24-month period preceding his care at Doctors Memorial Hospital on December 26, 2012, and the veteran admits this fact.  However, he makes an equitable argument that he had previously enrolled for VA care and had requested a medical appointment within the 24-month period, but had not yet been scheduled for an appointment as the waiting list for treatment was very long.

The Veteran has submitted statements indicating that he did not seek any medical services during the 24-month period prior to December 26, 2012 because he had been travelling for work and he had not had any major illnesses during that time.

A November 2012 medical record from the VAMC in Gainesville states that the Veteran had not been treated through VA since April 2009 and that he had called asking to reestablish care at that facility.  The Veteran was advised that he would have to go on a waiting list in order to reestablish care and that he may have to wait until spring of 2013 to have an appointment.

The undisputed evidence shows that the Veteran had not received VA care prior to his emergency treatment at Doctors Memorial Hospital on December 26, 2012.  The Veteran's enrollment for VA healthcare during the 24-month time period and his November 2012 request to reestablish care at VA do not, in and of themselves, satisfy the criteria of 38 U.S.C.A. § 1725(b) and 38 C.F.R. § 17.1002(d).  Eligibility also requires the Veteran to have actually received VA care within this time period.  See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met).  As a matter of law, the Board must deny the claim.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law).

In deciding this claim, the Board acknowledges the Veteran's argument that he had sought VA medical care in November 2012, one month prior to his December 26, 2012 emergency treatment, but had been denied care at that time and instead placed on a waiting list.  However, the Board observes that "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)).  The Board is without authority to grant or restore benefits simply because doing so might be equitable.  See 38 U.S.C.A. §503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994); Suttman v. Brown, 5 Vet. App. 127, 138 (Equitable relief is committed to the sole discretion of the Secretary, and the Board is without jurisdiction to review the exercise of that discretion.).

It is important for the Veteran to understand that VA does not normally pay for private treatment of a nonservice-connected disorder that is not related to VA treatment or military service.  It is only under extremely limited circumstances that VA may do so under the law.  The laws cited above form the only basis that VA may pay for these services.  Thus, as a matter of law, there simply is no legal basis for payment or reimbursement for the medical expenses incurred at Doctors Memorial Hospital on December 26, 2012, and the claim must be denied.


ORDER

Entitlement to payment or reimbursement for medical expenses incurred at unauthorized emergency treatment at Doctors Memorial Hospital in Perry, Florida on December 26, 2012 is denied.




____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs