Citation Nr: 1753814 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 14-07 263A ) DATE ) ) On appeal from the Department of Veterans Affairs Health Administration in Portland, Oregon THE ISSUE Entitlement to payment or reimbursement for the cost of private medical services provided to the Veteran at the Harborview Medical Center and University of Washington Physicians for outpatient services rendered on August 23, 2013; September 13, 2013; October 4, 2013; and November 15, 2013. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD K. Kovarovic, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from October 1969 to August 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from several letters of determination by the Department of Veterans Affairs (VA) VISN 20 Payment Center in Portland, Oregon. The claim was subsequently remanded by the Board in August 2015 for additional development, which has since been completed. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran withdrew his hearing request in a March 2014 written statement. In February 2017, the Oregon Department of Veterans' Affairs (ODVA) informed the Veteran that it was withdrawing as his representative. However, ODVA has failed to submit a motion to withdraw, demonstrative of good cause, to VA following the certification of this claim. Moreover, the February 2017 letter provided no reason for ODVA's purported withdrawal. As such, the Board finds that ODVA has not complied with the provisions of 38 C.F.R. § 20.608, such that the withdrawal is deemed invalid. Thus, ODVA continues to be recognized as the Veteran's representative at this time. 38 C.F.R. § 20.608 (2017). FINDING OF FACT The non-VA medical care provided was not authorized by VA, was not provided in a medical emergency, and VA facilities were feasibly available to provide the necessary treatment. CONCLUSION OF LAW The criteria for payment or reimbursement for the cost of private medical services provided to the Veteran at the Harborview Medical Center and University of Washington Physicians for outpatient services rendered on August 23, 2013; September 13, 2013; October 4, 2013; and November 15, 2013 have not been met. 38 U.S.C. § 1728 (2012); 38 C.F.R. § 17.120 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is seeking reimbursement for the cost of private medical care provided at Harborview Medical Center and University of Washington Physicians on August 23, 2013; September 13, 2013; October 4, 2013; and November 15, 2013. The Veteran does not contend, and the evidence does not otherwise suggest, that those appointments were authorized by VA in advance. In the absence of such prior authorization under 38 C.F.R. §§ 17.53 and 17.54, a claimant may be entitled to payment or reimbursement of unauthorized medical expenses incurred at a non-VA facility upon evidence of the following: (a) The care and services rendered were: (1) for an adjudicated service-connected disability, or (2) for a nonservice-connected disability associated with and held to be aggravating an adjudicated service-connected disability, or (3) for any disability of a veteran who has a total disability, permanent in nature, resulting from a service-connected disability, or (4) for any injury, illness, or dental condition in the case of a veteran who is participating in a rehabilitation program and who is medically determined to be in need of hospital care or medical services for reasons set forth in 38 C.F.R. § 17.47(i) (formerly § 17.48(j)); and, (b) The services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health; and, (c) No VA or other federal facilities were feasibly available and an attempt to use them beforehand would not have been reasonable. 38 U.S.C. § 1728 (2012); 38 C.F.R. § 17.120 (2017). All three statutory requirements must be met for reimbursement to be authorized. See Zimick v. West, 11 Vet. App. 45, 49 (1998); Malone v. Gober, 10 Vet. App. 539, 547 (1997); see also Melson v. Derwinski, 1 Vet. App. 334, 337 (the use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). Regrettably, the Board does not find that the Veteran has established such eligibility in this case. To that end, the Veteran's treatment stems from a severe injury incurred on August 3, 2013, following an approximate 10-foot fall off a roof. At that time, the Veteran was immobilized as due to three separate pelvic fractures, three fractured vertebrae between L1 and L5, broken ribs, a head contusion, and brain bleed. He was airlifted to the Harborview Medical Center for treatment, and was discharged on August 12, 2013. The Veteran was subsequently scheduled for follow-up appointments at Harborview Medical Center and University of Washington Physicians on August 23, 2013; September 13, 2013; October 4, 2013; and November 15, 2013. Of note, the Veteran is not seeking reimbursement for the emergent treatment at Harborview Medical Center between August 3 and August 12, 2013. Instead, the issue before the Board is limited to reimbursement for the noted follow-up appointments. The Board does not find that the above fact pattern satisfies the statutory requirements of 38 U.S.C. § 1728 such that reimbursement is warranted at this time. To that end, the Board notes that the Veteran is currently service-connected for chondromalacia of the left knee; chondromalacia of the right knee; tinnitus; and bilateral hearing loss, with a combined rating of 30 percent. As the treatments rendered by Harborview Medical Center and University of Washington Physicians pertain to the Veteran's sustained injuries to the pelvis, lower back, head, and brain, it cannot be found that these services were rendered for one of the Veteran's service-connected disabilities. Moreover, there is no evidence of record that the private treatments were due to any vocational rehabilitation program, or that the Veteran's August 2013 injuries were due to or aggravated by his service-connected disabilities. As the first prong under 38 U.S.C. § 1728 has not been met, the Veteran is thus barred from reimbursement in this case. As such, further analysis into the nature of the Veteran's care or his access to a VA or federal facility is hereby rendered moot. Nonetheless, the Board briefly notes that the private treatment at issue does not appear to have been tendered in light of an ongoing medical emergency. Instead, those appointments were used to assess the Veteran's recovery following the initial August 3rd fall. At no time did the Veteran present to those appointments with a life-threatening medical emergency or condition; instead, each treatment record notes the Veteran's steady improvement, such that the Veteran was making "the expected progress towards healing." As such, the Veteran was cleared to travel at the conclusion of those appointments. Accordingly, the second prong under 38 U.S.C. § 1728 has not been met. Finally, the Veteran has not argued, and the record does not reflect, that private treatment was necessary because the Veteran lacked reasonable access to a VA or other federal facility. Instead, the Veteran has explicitly noted that he scheduled those follow-up appointments at the direction of his private provider. As such, it does not appear that the Veteran attempted to solicit his treatment at a VA facility, despite the presence of a VA Medical Center approximately 25 miles from the Veteran's home. In sum, the Veteran's private treatment at Harborview Medical Center and University of Washington Physicians on August 23, 2013; September 13, 2013; October 4, 2013; and November 15, 2013 was not authorized by VA in advance, and does not satisfy the requisite statutory requirements for reimbursement. In reaching this conclusion, the Board is sympathetic to the Veteran's contentions. Specifically, the Veteran has argued that VA approved transportation via ambulance to the Harborview Medical Center on August 23, 2013, which imputes authorization of the private treatment, as well. Regrettably, the regulations governing transportation and reimbursement for private medical care are separate and distinct from one another. Additionally, 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 the cost of private medical services provided to the Veteran at the Harborview Medical Center and University of Washington Physicians for outpatient services rendered on August 23, 2013; September 13, 2013; October 4, 2013; and November 15, 2013, is denied. ____________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs