Citation Nr: 18143487
Decision Date: 10/19/18	Archive Date: 10/19/18

DOCKET NO. 15-42 618A
DATE:	October 19, 2018
ORDER
Entitlement to payment or reimbursement for the cost of non-VA medical care provided from January 8, 2015 to January 13, 2015, at Conroe Medical Center in Conroe, Texas is denied.
FINDING OF FACT
The non-VA medical care provided was not authorized by VA, and VA facilities were feasibly available to provide the necessary treatment.
CONCLUSION OF LAW
The criteria for payment or reimbursement for unauthorized medical expenses incurred at Conroe Medical Center from January 8, 2015 to January 13, 2015 are not met.  38 U.S.C. §§ 1703, 1725, 1728; 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120, 17.121, 17.1002.

REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active naval service from April 1984 to April 1988, and from December 1988 to December 2007.
This case comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 administrative decision issued by the Department of Veterans Affairs (VA) Medical Center in Clarksburg, West Virginia.  
In connection with this appeal, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in September 2017. A transcript of that hearing has been associated with the claims file.
Medical reimbursement
In claims involving payment or reimbursement by VA for medical expenses incurred as a result of treatment at a private facility, it must first be determined whether the services for which payment is sought were authorized by VA. See 38 U.S.C. § 1703 (a); 38 C.F.R. § 17.54. 
However, when the Veteran receives treatment at a non-VA facility without prior authorization, there are two statutes that allow for him to be paid or reimbursed for the medical expenses incurred for that treatment if required criteria are met. See 38 U.S.C. §§ 1725, 1728. 
In general, under 38 U.S.C. § 1728, in order to be entitled to payment or reimbursement of medical expenses incurred at a non-VA facility, there must be a showing that three criteria are met:
(a) the care and services rendered were either: (1) for an adjudicated service-connected disability, (2) for a nonservice-connected disability 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, 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) (2000)); and 
(b) the treatment was for a medical emergency of such nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention 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 authorization for the services required would not have been reasonable, sound, wise, or practicable, or treatment had been or would have been refused. 
See 38 U.S.C. § 1728; 38 C.F.R. § 17.120.
All three statutory requirements found in § 1728 must be met before the reimbursement may be authorized. See Zimick v. West, 11 Vet. App. 45, 49 (1998); Hayes v. Brown, 6 Vet. App. 66, 68 (1993). 
To be eligible for reimbursement under 38 U.S.C. § 1725, the Veteran has to satisfy all of the following conditions:
(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, 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 U.S.C. § 1728 authorizes VA payment or reimbursement for emergency treatment to a limited group of Veterans, primarily those who receive emergency treatment for a service-connected disability). 
38 C.F.R. § 17.1002. Failure to satisfy any of the criteria listed above precludes VA from paying unauthorized medical expenses incurred at a private facility. See 38 U.S.C. § 1725 (b); 38 C.F.R. § 17.1002 (g). These criteria are conjunctive, not disjunctive; thus, all of the criteria found in 38 U.S.C. § 1725 must be met before payment will be authorized. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (holding that use of the conjunctive “and” in a statutory provision meant that all of the conditions listed in the provision must be met). 
Burden of Proof
Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.
In this case, the Veteran asserts that he should be reimbursed for the cost of non-VA medical expenses incurred when he was admitted into the emergency room at a private hospital in Conroe, Texas. He asserts that he was sent to the Conroe Medical Center, and that he was not offered the opportunity to go to the Houston VA Medical Center (VAMC). Additionally, the Veteran has asserted that he lives 63 miles from the Houston VAMC so that the Veteran’s choice program should apply to his claim.
At the outset, the Board notes the following facts are not disputed: at the time the medical services were provided the Veteran was service-connected for asthma; and treatment for his asthma exacerbation and pneumonia was emergent; the Veteran is financially liable to the private medical provider; at the time emergency treatment was furnished, the Veteran was enrolled in the VA health care system; the Veteran did not have coverage under a health plan that would cover the treatment; and the condition was not caused by accident or work-related injury.    
The Veteran has not alleged, and the evidence does not show, that he sought and received prior authorization from VA for the treatment he received, nor was an application for authorization made to VA within 72 hours of the services rendered. Similes v. Brown, 6 Vet. App. 555, 556 (1994) (noting that the determination as to whether VA gave prior authorization for non-VA medical care received at a private facility is factual, rather than medical, in nature). In the absence of prior authorization or deemed prior authorization for medical services, there is no factual or legal basis for payment or reimbursement by VA for medical services received at the private hospital in Conroe, Texas. 38 U.S.C. § 1703; 38 C.F.R. §§ 17.52, 17.53, 17.54.
Given that the Veteran was service-connected for asthma at the time the emergency treatment was furnished, the Board must determine whether reimbursement is warranted under 38 U.S.C. § 1728.
In that regard, the Board notes the determinative issue of the matter is whether a VA facility was feasibly available. 
As for the availability of a VA facility, the Board finds a VA facility was feasibly available but the Veteran chose the private facility instead.  Moreover, medical treatment records note that the Veteran refused to go to the Houston VAMC, and instead wanted to go to the Conroe Medical Center.
The Board acknowledges the Veteran’s testimony that he did not choose to go to Conroe Medical Center, and that he did not refuse to go to the Houston VAMC. Instead, his primary care doctor asked him if he was okay in going to the Conroe Medical Center as it was located across the street, and that he assumed that there would be VA authorization for treatment. Further, the Veteran testified that if he were given the option he would have chosen to go to St. Luke’s Hospital. However, on his May 2015 VA form 9 the Veteran stated that he was given the option to go to Conroe Medical Center, the Houston VA Medical Center, or St. Luke’s Hospital, and that he ultimately chose to go to Conroe Medical Center. He said that he chose to go to Conroe Medical Center, because it was across the street from his primary care physician.  He stated that he was under the belief that VA would still pay the bill if he went to Conroe Medical Center. In that regard, he asserts that VA did not explain the appropriate rules and regulations regarding payment of hospital bills. Moreover, the Veteran testified that his doctor asked him if he was okay with going to the Conroe Medical Center, and that he assumed that there was VA authorization for treatment at the private emergency room.
Thus, it is clear that VA facilities were feasibly available to the Veteran as his primary care physician gave the Veteran the option to seek treatment at the Houston VAMC. Furthermore, given that the Veteran’s primary care physician gave the Veteran the option to seek treatment at the Houston VAMC, it would have been reasonable for the Veteran to attempt to avail himself of the VA facilities. Moreover, there is no indication, and the Veteran did not allege, that the Houston VAMC could not have provided the Veteran with the necessary medical attention.
Therefore, payment or reimbursement of medical expenses pursuant to 38 U.S.C. § 1728 (a) must be denied. Moreover, as a VA facility was feasible, payment or reimbursement of medical expenses pursuant to 38 U.S.C. § 1725 must also be denied.
The Board acknowledges the Veteran’s assertion that he lives 63 miles from the Houston VAMC, and that the Veteran’s Choice Act should affect his claim. While the Board has no reason to doubt the Veteran’s assertion, the Board finds the Veteran’s Choice Act does not apply in this case.  In that regard, a Veteran eligible for the Veterans Choice Program under § 17.1510 may choose to schedule an appointment with a VA health care provider, be placed on an electronic waiting list for VA care, or have VA authorize the veteran to receive an episode of care for hospital care or medical services under 38 C.F.R. 17.38 from an eligible entity or provider. 38 C.F.R. § 17.1505 specifically defines an appointment as an authorized and scheduled encounter with a health care provider for the delivery of hospital care or medical services. A visit to an emergency room or an unscheduled visit to a clinic is not an appointment. As the Veteran is seeking payment or reimbursement for unauthorized medical expenses incurred at a private emergency department, the Board finds that the Veteran’s Choice Act does not apply in this case.
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. 38 U.S.C. §§ 503, 7104 (2012); Harvey v. Brown, 6 Vet. App. 416 (1994). Those governing provisions direct that where, as here, the preponderance of the evidence is against a claim for payment or reimbursement of unauthorized medical expenses, that claim must be denied. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 
 
T. REYNOLDS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	I. Cannaday, Associate Counsel