Citation Nr: 18146595
Decision Date: 10/31/18	Archive Date: 10/31/18

DOCKET NO. 16-15 297A
DATE:	October 31, 2018
ORDER
Entitlement to payment or reimbursement for the cost of non-VA medical care provided on August 22, 2010, at Catawba Valley Medical Center in Hickory, North Carolina is denied.
FINDING OF FACT
The Veteran did not receive VA medical services within the 24-month period preceding his period of non-VA emergency medical treatment August 22, 2010.
CONCLUSION OF LAW
The criteria for payment or reimbursement for unauthorized medical expenses incurred at Catawba Valley Medical Center in Hickory, North Carolina are not met.  38 U.S.C. §§ 1703, 1725, 1728 (2012); 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120, 17.121, 17.1002 (2018).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active military service from September 1981 to September 1984.
This case comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 administrative decision issued by the Department of Veterans Affairs (VA) Medical Center in Salem, Virginia.
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 Veteran does not contend, and the evidence does not otherwise suggest, that the Veteran’s treatment on August 22, 2010, was authorized in advance. 
Nevertheless, VA is authorized to reimburse veterans for emergency medical treatment under 38 U.S.C. § 1725 and 38 U.S.C. § 1728. To be eligible for reimbursement under 38 U.S.C. § 1728, the treatment must have been for associated with a service-connected disability or the Veteran must be a participant in a vocational rehabilitation program. 38 U.S.C. § 1728 (a); 38 C.F.R. § 17.120 (2018).
The record does not show that the Veteran is service-connected for any disabilities, nor that the Veteran is a participant in a vocational rehabilitation program. Therefore, the Veteran did not meet the criteria for payment of authorized or unauthorized medical expenses of 38 U.S.C. § 1728 (2018); thus, the Veteran’s claim for payment must be considered under criteria for determining entitlement under the Veterans Millennium Healthcare and Benefits Act (Act), 38 U.S.C. § 1725; 38 C.F.R. §§ 17.1000 - 17.1008.
The criteria that must be met are as follows:
 (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 such provider 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) The claim for payment or reimbursement for any medical care beyond the initial emergency evaluation and treatment is for a continued medical emergency of such a nature that the Veteran could not have been safely discharged or transferred to a VA or other Federal facility (the medical emergency lasts only until the time the Veteran becomes stabilized);
(e) 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;
(f) The Veteran is financially liable to the provider of emergency treatment for that treatment;
(g) 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);
(h) If the condition for which 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 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,
(i) 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 (2018).
The criteria under 38 C.F.R. § 17.1002 are conjunctive, not disjunctive. Therefore, all criteria must be met. Melson v. Derwinski, 1 Vet. App. 334 (1991). The Board finds that the Veteran’s claim for reimbursement fails because the Veteran had not received medical services under authority of 38 U.S.C. Chapter 17 within the 24-month period preceding the furnishing of his emergency treatment.
In reaching this decision, the Board acknowledges the Veteran’s contentions. Specifically, that the nearest VA Medical Center is more than an hour away, and that he believed that he had appendicitis. Further, that urgent care offered him an ambulance to the emergency room. The Board has no reason to doubt the Veteran’s contentions. However, there is no indication from the record that the Veteran had received medical services under authority of 38 U.S.C. Chapter 17 within the 24-month period preceding the furnishing of his emergency treatment. In that regard, in his October 2010 notice of disagreement the Veteran stated that VA outpatient clinic in Hickory, North Carolina was new and that he had recently enrolled for VA healthcare. Indeed, the Veteran acknowledged that he had not yet been to a VA doctor.  
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