Citation Nr: 18145881 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 15-42 693A DATE: October 30, 2018 ORDER Entitlement to payment or reimbursement for the cost of non-VA medical care provided on May 5, 2015, at Memorial Medical Center in Springfield, Illinois is denied. FINDING OF FACT The non-VA medical care provided was not authorized by VA, there was no indication that it was provided in a medical emergency, and VA facilities were feasibly available to provide the necessary treatment. CONCLUSION OF LAW The criteria for entitlement to reimbursement for the cost of non-VA medical care provided on May 5, 2015, at Memorial Medical Center in Springfield, Illinois have not been met. 38 U.S.C. §§ 1703, 1725, 1728 (2012); 38 C.F.R. §§ 17.120-17.121 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from February 1971 to April 1972. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 administrative decision issued by the Department of Veterans Affairs (VA) Medical Center in Danville, Illinois. Medical reimbursement 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. § 1703 (a)(3) (2012); 38 C.F.R. § 17.52 (2018). 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 (2018); 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 (2018). The evidence does not otherwise suggest, that the Veteran’s treatment on May 5, 2015, was authorized in advance. In reaching this decision, the Board acknowledges the Veteran’s contentions. Specifically, that he called a VA facility, and was directed by a “telenurse” to go to the emergency room at a local non-VA facility. Indeed, a December 2015 e-mail noted that the Veteran called triage the morning of May 5, 2015, and that he was recommended to go to urgent care or an emergency room. However, the advice of a nurse to go to a non-VA hospital is not the specific type of authorization contemplated in the applicable regulation. See 38 C.F.R. § 17.54 (a); Smith v. Derwinski, 2 Vet. App. 378, 379 (1992). In the absence of prior authorization for medical services, there is no factual or legal basis for payment or reimbursement by VA under 38 U.S.C. § 1703. The Board realizes that when the Veteran receives treatment at a non-VA facility without prior authorization, there are two statutes that can allow for him to be paid or reimbursed for the medical expenses incurred for that treatment - specifically, 38 U.S.C. §§ 1725 and 1728. However, neither 38 U.S.C. §§ 1725 and 1728 is applicable here as both of these statutes require that the treatment rendered has to be for “emergency treatment.” Further, both require that VA or other federal facilities were not feasibly available. The Board finds that the record does not suggest, that the private treatment received was for an “emergent” circumstance. Moreover, VA facilities were feasibly available. Therefore, neither 38 U.S.C. §§ 1725 and 1728 pertaining to unauthorized medical expenses applies in this case. The Board finds that there is no indication from the record that the medical care in question was provided in the case of a medical emergency and there was nothing which prevented him from seeking the medical care provided from a VA facility. In that regard, the medical treatment record from the Veteran’s emergency room visit noted that the Veteran’s chief complaint was that he had 4 nosebleeds in 6 days, with the most recent nosebleed occurring the night prior to the emergency room visit. Indeed, the Veteran was not bleeding at the time of his emergency room visit. Moreover, the Veteran did not appear to be in any pain upon arrival. The Veteran stated that his nose bleeds began spontaneously, and resolved with the application of pressure. The doctor diagnosed acute anterior epistaxis, and discharged the Veteran home. Given the delay in seeking treatment, it does not appear that the Veteran reasonably expected the absence of immediate medical attention to result in placing his health in serious jeopardy. Further, the record indicates that the VA facility in Springfield, Illinois could have provided the service rendered to the Veteran. Moreover, there is no indication, and the Veteran did not allege, that the Springfield VA facility could not have provided the Veteran with the necessary medical attention. Instead, as noted above, the Veteran simply stated that he was told to go to an emergency room at a non-VA facilty. Further, the record reflects that the VA facility in Springfield was approximately 5 miles from the Veteran’s home. Thus, the Board finds that a VA facility was feasibly available for treatment. 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. 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). Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Cannaday, Associate Counsel