Citation Nr: 18158223
Decision Date: 12/14/18	Archive Date: 12/14/18

DOCKET NO. 16-35 341A
DATE:	December 14, 2018
ORDER
Entitlement to payment or reimbursement for the cost of non-VA medical care provided from August 3 through August 5, 2015, at St. Francis Medical Center is denied.
FINDING OF FACT
The non-VA medical care provided was not authorized by VA, and there was no indication that it was provided in a medical emergency.
CONCLUSION OF LAW
The criteria for payment or reimbursement for unauthorized medical expenses incurred at St. Francis Medical Center from August 3 through August 5, 2015, 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 August 1953 to July 1958.  He died in November 2015.  The appellant is the entity that furnished the Veteran’s medical treatment.
This case comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 administrative decision issued by the Department of Veterans Affairs (VA) Medical Center in New Orleans, Louisiana.
Reimbursement for the cost of non-VA medical care provided 
The appellant does not contend, and the evidence does not otherwise suggest, that the Veteran’s treatment from August 3 through August 5, 2015, was authorized in advance.
The Veteran has asserted that on July 27, 2015, a physician at the St. Francis Medical Center informed the Veteran that he had an abdominal aortic aneurysm.  Further, that his treatment on August 3, 2015 was performed to prevent emergency care related to a potential cerebrovascular accident, and myocardial infarction.  The Board has no reason to doubt the appellant’s above assertions.  Indeed, the medical record reflects that the Veteran’s physician noted a very large abdominal aortic aneurysm, and explained to the Veteran and his wife the basics of endograft deployment under fluoroscopy.  The physician discussed anticipated hospital, surgical, and home recovery times.  Further, he explained the risks of myocardial infarction, cerebrovascular accident, graft migration, bleeding, and the need for an urgent laparotomy.
However, 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 VA.  In that regard, the medical record indicates that the Veteran’s surgery was scheduled a week in advance.  Further, the record does not suggest that the Veteran’s symptoms changed during that time.  Moreover, the private physician discussed the alternatives to endografting with the Veteran and his wife.  Finally, the record does not suggest that the Veteran attempted to seek VA treatment for his symptoms.
Thus, 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. 
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