Citation Nr: 18140037
Decision Date: 10/02/18	Archive Date: 10/02/18

DOCKET NO. 13-03 499A
DATE:	October 2, 2018
ORDER
Payment of or reimbursement for unauthorized medical expenses incurred for treatment received at Ozark Health Medical Center on July 25, 2011 is denied.
(The Veteran’s claim for an increased rating for posttraumatic stress disorder (PTSD) will be addressed in a separate decision.)

FINDING OF FACT
Although the Veteran was enrolled in the VA health care system at the time of his treatment at Ozark Health Medical Center on July 25, 2011, he had not received VA medical services under the authority of Chapter 17 of Title 38 within the preceding 24 months.
CONCLUSION OF LAW
The criteria for establishing entitlement to payment of or reimbursement for unauthorized medical expenses incurred for treatment received at Ozark Health Medical Center on July 25, 2011 have not been met. 38 U.S.C. § 1725; 38 C.F.R. § 17.1002.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from July 1968 to November 1969.  
This matter is on appeal from a September 2012 decision by a VA Medical Center (VAMC).
In March 2015, the Board denied a separate unauthorized medical expenses claim.  At that time, the Board remanded the present claim for issuance of a statement of the case (SOC).  An SOC was issued in August 2015 and the Veteran perfected an appeal later that month.
The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).
Entitlement to payment of or reimbursement for unauthorized medical expenses.
Legal Criteria
Payment of or reimbursement for unauthorized medical expenses may be made pursuant to 38 U.S.C. § 1725, if for nonservice-connected disability.  At the time of the treatment in question, service connection was not in effect for any condition.  To be eligible for payment, all of the following criteria must be met:
(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 a nature that a prudent layperson would have reasonably expected that delay in seeking immediate 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 would 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) 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;
(e) The veteran is financially liable to the provider of emergency treatment for that treatment;
(f) 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);
(g) 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; and
(h) The veteran is not eligible for reimbursement under 38 U.S.C. § 1728 for the emergency treatment provided.
38 C.F.R. § 17.1002.
Factual Background and Analysis
In this case, the evidence indicates that the Veteran received treatment at the emergency department of Ozark Health Medical Center on July 25, 2011, for broken ribs sustained in a fall.  He is being billed for the services rendered and seeks VA to reimburse him for the expenses.
In a September 2012 administrative decision on appeal, the VAMC denied the Veteran’s medical reimbursement claim, finding that although the Veteran was enrolled in the VA health care system at the time of treatment at issue, he had not received VA medical services under authority of Chapter 17 of Title 38 of the United States Code within the 24-month period preceding the furnishing of such emergency treatment.  The Board notes that this is one of the necessary criteria for a Veteran to receive payment for or reimbursement of expenses associated with unauthorized medical services for nonservice-connected disorders when the Veteran does not have insurance.  See 38 C.F.R. § 17.1002(d). 
A September 2012 letter from the VAMC shows that the Veteran did not receive any VA medical care within 24 months preceding his private emergency room treatment in July 2011.  The Veteran has not disputed this fact.  Rather, he contends that he did not have any prior notice of the VA regulatory requirement.  Further, he contends that he may have been treated at a VA facility if his application for enrollment in the VA health care system was processed when initially submitted in September 2010.  He contends that he did not knowingly or purposely violate any VA rule and that the benefit should be granted under equity.   
The Board acknowledges that the Veteran was unaware of the 24-month requirement; however, VA regulations apply in this case whether or not he has actual knowledge of the regulations.  See Morris v. Derwinski, 1 Vet. App. 260, 265 (1991); Jernigan v. Shinseki, 25 Vet. App. 220, 231 (2012).
The Veteran does not dispute that he did not receive any VA health care during the 24 months immediately prior to July 25, 2011.  Because all of the criteria listed above are required to be met, and the Veteran fails to meet one, there is no need to address whether any of the other requirements for such reimbursement have been met.
(Continued on the next page)
 
In an October 2017 brief, the Veteran’s representative contends that a prior Board decision granted coverage in similar circumstances.  However, Board decisions are not precedential legal authority and pertain to the specific circumstances of that veteran’s case.  See 38 C.F.R. § 20.1303; Hillyard v. Derwinski, 1 Vet. App. 349, 351 (1991).  The Board does not find that a prior Board decision has a binding effect on the proper application of the facts to law in the Veteran’s case.  Furthermore, the representative referenced the word “seek” in the Board’s March 2015 decision in the present case.  The Board was recounting the contention and not the specific wording of the regulation.  The Board considers receiving medical care as “receiving” medical care in the normal definition of the word rather than “seeking” medical care.  In sum, in applying the laws enacted by Congress and regulations promulgated thereto by which the Board is bound, the Board must deny the claim.
 
RYAN T. KESSEL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. George