Citation Nr: 18152668 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 17-21 140 DATE: November 23, 2018 ORDER Payment or reimbursement of medical expenses incurred on May 1, 2016, at Capital Regional Medical Center (CRMC) is denied. FINDING OF FACT The earliest claim filed for payment or reimbursement of medical expenses incurred at CRMC for the Veteran’s May 1, 2016, treatment, was not within 90 days of either that treatment date, or a date on which he exhausted action to obtain payment or reimbursement from a third party. CONCLUSION OF LAW The criteria for payment or reimbursement of medical expenses incurred on May 1, 2016, at CRMC have not been met. 38 U.S.C. §§ 1725, 5107; 38 C.F.R. §§ 17.1000-08. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1980 to June 1983. This appeal is before the Board of Veterans’ Appeals (Board) from a November 2016 decision of a VA Medical Center. The Veterans Millennium Health Care and Benefits Act provides general authority for reimbursement for the reasonable value of emergency treatment furnished in a non-VA facility to those Veterans who are active VA health-care participants (i.e., enrolled in the annual patient enrollment system and recipients of a VA hospital, nursing home, or domiciliary care under such system within the last 24-month period) and who are personally liable for such non-VA treatment and not eligible for reimbursement under the provisions of 38 U.S.C. § 1728. 38 U.S.C. § 1725; 38 C.F.R. §§ 17.1000-1008. Pursuant to 38 U.S.C. § 1725, under certain circumstances, VA shall reimburse a veteran for the reasonable value of emergency treatment furnished the veteran in a non-Department facility. VA regulations at 38 C.F.R. §§ 17.1000 through 17.1008 constitute the requirements under 38 U.S.C. § 1725 that govern VA payment or reimbursement for non-VA emergency services furnished to a veteran for nonservice-connected conditions. 38 C.F.R. § 17.1000. For purposes relevant to the facts of this case, to receive payment or reimbursement for emergency services under 38 U.S.C. § 1725, a claimant must file a claim within 90 days after the latest of the following: the date that the veteran was discharged from the facility that furnished the emergency treatment; or the date the veteran finally exhausted, without success, action to obtain payment or reimbursement for the treatment from a third party. 38 C.F.R. § 17.1004(d). The date of filing any claim for payment or reimbursement of the expenses of medical care and services not previously authorized shall be the postmark date of a formal claim, or the date of any preceding telephone call, telegram, or other communication constituting an informal claim. 38 C.F.R. § 17.127. The pertinent facts of this case are not disputed. The Veteran received emergency treatment for dizziness and lightheadedness, which he thought might be related to a lung disorder, to include a lung transplant, at CRMC on May 1, 2016. He initially filed a claim for payment or reimbursement for payment of this treatment on September 22, 2016. There is no indication that, between the time of treatment and the time his September 2016 claim, the Veteran attempted action to obtain payment or reimbursement for the treatment from a third party. As reflected in his February 2017 substantive appeal, the Veteran acknowledges that he did not file a claim within 90 days after the May 1, 2016, date of his emergency treatment at CRMC, and asserts that this was because he was not aware he was required to file the claim within this period. The Board acknowledges the Veteran’s contentions, but is bound by VA regulations regarding limitations on reimbursement, including time limitations for filing claims. See 38 U.S.C. § 1725(c)(1)(B); 38 C.F.R. § 17.1004(d). The record reflects, and the Veteran does not dispute, that he did not meet the basic filing requirements for his medical reimbursement claim under 38 C.F.R. § 17.1004 regarding the time limitations for filing claims. As the law is dispositive of the claim, rather than the facts, the claim must be denied because of lack of legal entitlement. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Accordingly, payment or reimbursement of medical expenses incurred at CRMC on May 1, 2016, must be denied. As a final matter, the Board notes that the Veteran does not have any current adjudicated, service-connected disabilities. See 38 C.F.R. § 17.120(a)(1). However, in March 2018, the Board remanded the matter of entitlement to service connection for a pulmonary disability, and the matter is still on appeal. Under 38 U.S.C. § 1728, a Veteran is entitled to payment or reimbursement of unauthorized medical expenses incurred at a non-VA facility for treatment of a service-connected disability when it is also shown that (1) the services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health, and (2) 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; 38 C.F.R. § 17.120. The provisions of 38 U.S.C. § 1728 are implemented under 38 C.F.R. §§ 17.120-32. Unlike claims made pursuant to 38 U.S.C. § 1725, for claims for payment or reimbursement of the expenses of medical care or services with respect to service-connected disabilities under 38 U.S.C. § 1728, a claim must be filed within two years after the date the care or services were rendered. In the case of services rendered prior to a VA adjudication allowing service-connection, a claim must be filed within two years of the date the Veteran was notified by VA of the allowance of the award of service-connection. See 38 C.F.R. § 17.126. In this case, the Board intimates no opinion as to the merits of any claim for payment or reimbursement of medical expenses incurred at CRMC for Veteran’s May 1, 2016, for pursuant to 38 U.S.C. § 1728, should the Veteran’s service connection claim for a pulmonary disability ultimately be granted. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Andrew Mack, Counsel