Citation Nr: 1418721 Decision Date: 04/28/14 Archive Date: 05/06/14 DOCKET NO. 12-14 410A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Tacoma, Washington THE ISSUE Entitlement to payment or reimbursement for the cost of unauthorized oncology medical treatment provided from January 2011 to April 2011 by Harrison Medical Center in Bremerton, Washington. WITNESSES AT HEARING ON APPEAL Appellant and son-in-law ATTORNEY FOR THE BOARD K. Haddock, Counsel INTRODUCTION The Veteran had active service from May 1968 to June 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal from administrative decisions by the Department of Veterans Affairs (VA) Medical Center in Tacoma, Washington. The Veteran died in February 2012 and the claim currently on appeal was pending at the time of his death. The Veteran's surviving spouse has been substituted as the appellant in this case. In connection with this appeal, the appellant and her son-in-law testified at a hearing before the undersigned Veterans Law Judge at the RO in September 2013. A transcript of that hearing is of record. FINDING OF FACT The non-VA oncology medical treatments the Veteran received from January 2011 to April 2011 at Harrison Medical Center in Bremerton, Washington were not authorized by VA and were not provided in a medical emergency. CONCLUSION OF LAW The criteria for payment or reimbursement for unauthorized medical treatment the Veteran received from January 2011 to April 2011 at Harrison Medical Center in Bremerton, Washington are not met. 38 U.S.C.A. § 1728 (West 2002); 38 C.F.R. § 17.120 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA has duties to notify and assist a claimant at the time a claim for benefits is filed. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). However, those duties do not apply to claims, such this one, that fall within the parameters of 38 U.S.C.A Chapter 17. 38 C.F.R. §§ 17.123-17 .132 (2013); Barger v. Principi, 16 Vet. App. 132 (2002); Manning v. Principi, 16 Vet. App. 534 (2002) (VA's duties to provide notice and assistance to claimants have no effect on an appeal where the law, and not the underlying facts or development of the facts, are dispositive in a matter). Notwithstanding the inapplicability of the notice and development provisions, the Board finds that the agency of original jurisdiction effectively explained to the appellant the basis for denial of payment or reimbursement for January 2011 to April 2011 private medical expenses. Moreover, the appellant has been provided the opportunity to submit written statements and related evidence in support of the claim. Additionally, the appellant and her son-in-law participated in a hearing before the undersigned in September 2013 and a transcript of that hearing has been associated with the record. In light of the foregoing, the Board finds that VA has satisfied any duties to notify and assist the claimant in the development of the claim. When VA facilities are not capable of furnishing required care or services, VA may contract with non-VA facilities in order to furnish certain care, including hospital care or medical services, for the treatment of medical emergencies that pose a serious threat to the life or health of a Veteran receiving medical services in a VA facility, until such time following the furnishing of care in the non-VA facility as the Veteran can be safely transferred to a VA facility. 38 U.S.C.A § 1703(a)(3) (West 2002); 38 C.F.R. § 17.52 (2013). The admission of a Veteran to a non-VA hospital at the expense of VA must be authorized in advance. 38 C.F.R. § 17.54 (2013); Malone v. Gober, 10 Vet. App. 539 (1997). 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). The Veteran does not contend, and the evidence does not otherwise suggest, that the Veteran's treatment from August 14, 2012, to August 18, 2012, was authorized in advance. Nevertheless, VA may reimburse Veterans for unauthorized medical expenses incurred in non-VA facilities when: (a) Care or services not previously authorized were rendered to a Veteran in need of such care or services: (1) For an adjudicated service-connected disability; (2) For nonservice-connected disabilities associated with and held to be aggravating an adjudicated service-connected disability; (3) For any disability of a Veteran who has a total disability permanent in nature resulting from a service-connected disability; (4) For any illness, injury, or dental condition in the case of a Veteran who is participating in a rehabilitation program under 38 U.S.C. Chapter 31 and who is medically determined to be in need of hospital care or medical services for any of the reasons enumerated in § 17.48(j); and (b) Care and services not previously authorized were rendered in a medical emergency of such nature that delay would have been hazardous to life or health; and (c) VA or other federal facilities were not feasibly available, and an attempt to use them beforehand or 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); 38 C.F.R. § 17.120 (2013). All three statutory requirements must be met before the reimbursement may be authorized. Zimick v. West, 11 Vet. App. 45 (1998); Hayes v. Brown, 6 Vet. App. 66 (1993). VA only has the authority to make payments for reimbursements of unauthorized medical treatment when the expense was incurred for an emergency as defined by applicable law. Fritz v. Nicholson, 20 Vet. App. 507 (2006) (Congress has authorized VA to reimburse veterans for unauthorized emergency medical treatment under two statutory provisions, 38 U.S.C. § 1728 and 38 U.S.C. § 1725). Although a claimant may be eligible for VA hospital care under 38 U.S.C.A. § 1710, there are no provisions under that section to allow for reimbursement of medical expenses incurred at a non-VA facility. Zimick v. West, 11 Vet. App. 45 (1998). Payments from the Federal Treasury must be authorized by statute, and government employees may not make obligations beyond the scope authorized by statute. Smith v. Derwinski, 2 Vet. App. 378 (1992). The Board notes that the facts in this case are not in dispute. At the time of his death, the Veteran was service-connected for small cell lung carcinoma, rated 100 percent, and lytic bone lesions associated with small cell lung carcinoma, also rated 100 percent, both effective June 2, 2010. During the period from January 2011 to April 2011, the Veteran received regular, scheduled oncology treatment for his service-connected small lung carcinoma and associated complications. The Veteran did not receive prior VA authorization for that treatment. At the September 2013 Board hearing, the appellant asserted that she was unaware that prior authorization was required for the Veteran to receive non-VA care for service-connected disabilities as she had not received the Veterans Benefits Handbook informing her of the Veteran's rights and obligations until after the Veteran died. Further, she reported that she and the Veteran had been working with a Veterans benefits counselor who had not told them that they needed to seek prior authorization. The Board notes that while that is unfortunate, ignorance of the policies and procedures regarding the payment for non-VA medical services is not a sufficient reason to determine that reimbursement for such treatment is allowable. Additionally, at the September 2013 Board hearing, the appellant asserted that the medical care that the Veteran received at Harrison Medical Center was emergent in nature. Specifically, she reported that she and the Veteran had been informed that he was very ill and had little time left and required extensive treatment. She reported that without the treatment, the Veteran would have died sooner. The Board does not find that argument persuasive. It appears from the record that the Veteran's oncology treatment at Harrison Medical Center was routine cancer treatment and was scheduled. Treatment that is scheduled in advance is not typically emergent in nature within the meaning of the applicable statutes and regulations, despite the necessity of that treatment. Additionally, while the Board acknowledges that the Veteran was very ill and the oncology treatment provided was a necessary effort to prolong his life, that alone does not make treatment emergent. Finally, at the September 2013 hearing, the appellant asserted that it had not been feasible for the Veteran to receive his oncology treatment at a VA Medical Center. Specifically, she reported that the closest VA Medical Center to her home was at least 60 miles away, but that Harrison Medical Center was only about eight miles from their home and much easier for the Veteran to make appointments. Additionally, she reported that the Veteran had been unable to drive himself great distances, and so, would have been reliant on others to get him to his appointments had he been required to receive his medical treatment at the VA Medical Center. While the Board finds that argument persuasive, the Board notes that feasibility of VA treatment is only one element of the claim. Therefore, the fact that a VA facility may not have been feasibly available for treatment alone is not enough to warrant payment or reimbursement of non-VA medical expenses. The claim fails because the treatment was not emergent. In sum, the Veteran's oncology treatment at Harrison Medical Center in Bremerton, Washington was not authorized by VA in advance and was not emergent in nature. Therefore, the Board finds that payment or reimbursement for the cost of unauthorized oncology medical treatment provided from January 2011 to April 2011 by Harrison Medical Center in Bremerton, Washington is not warranted. In reaching this decision, the Board is sympathetic to the appellant's contentions. Nevertheless, the Board lacks the discretion to award medical care benefits on an equitable basis and is instead bound to observe the limits on its authority set forth by VA statutes and regulations. Those governing provisions direct that where, as here, the preponderance of the evidence is against the claim for payment or reimbursement of unauthorized medical expenses, that claim must be denied. ORDER Entitlement to payment or reimbursement for unauthorized oncology medical treatment provided from January 2011 to April 2011 by Harrison Medical Center in Bremerton, Washington is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs