Citation Nr: 18158195 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 16-19 940 DATE: December 14, 2018 ORDER Entitlement to payment or reimbursement for the cost of non-VA medical care provided from May 15, 2014, through May 20, 2014, at San Juan Regional Medical Center in Farmington, New Mexico is denied. FINDING OF FACT The non-VA medical care provided was not authorized by VA, and 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. CONCLUSION OF LAW The criteria for payment or reimbursement for unauthorized medical expenses incurred at San Juan Regional Medical Center from May 15, 2014, through May 20, 2014 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 naval service from January 1991 to January 1993. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an June 2014 administrative decision issued by the Department of Veterans Affairs (VA) Medical Center in Fort Harrison, Montana. The Veteran requested a personal hearing before a member of the Board on his January 2016 substantive appeal. The Veteran was scheduled for his requested hearing on April 5, 2017. However, the Veteran did not appear at a hearing before the Board. As such, the request for a Board hearing is deemed withdrawn. 38 C.F.R. §20.704(d) (2018). Medical reimbursement 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 (2012); 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 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). The 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). 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 such emergency treatment. In reaching this decision, the Board acknowledges the Veteran’s contentions. Specifically, that he tried to be seen by VA, and that his paperwork was lost. Further, that his condition had become an emergency by the time his paperwork issue was resolved. Further, the Veteran argued that while he should be liable for his emergency medical treatment on May 15, 2014, that the subsequent days should be reimbursed. In that regard, he asserted that there were no beds available at the VA facility. The Board has no reason to doubt the Veteran’s above assertions. Indeed, there is a notation in the record that the Veteran could not transfer to a VA facility on May 16, May 17, and May 18, 2014 because there were no beds available. Nonetheless, the record does not indicate that the Veteran received VA treatment within the 24-month period preceding the furnishing of the Veteran’s emergency treatment. Indeed, the Board notes that he Veteran acknowledged that he had not received VA treatment in the previous 24-month period. Thus, the Board finds that 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 from May 15 through May 20, 2014. 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