Citation Nr: 18158224 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 16-41 895 DATE: December 14, 2018 ORDER Entitlement to payment or reimbursement for the cost of non-VA medical care provided on August 25, 2015, at St. Anthony Shawnee Hospital in Shawnee, Oklahoma 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 payment or reimbursement for unauthorized medical expenses incurred at St. Anthony Shawnee Hospital, 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 November 1962 to April 1972. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 administrative decision issued by the Department of Veterans Affairs (VA) Medical Center in Oklahoma City, Oklahoma. The Veteran has appealed the denial of entitlement to a total disability rating based on individual unemployability; however, that matter will be addressed in a separate decision. Medical reimbursement At the outset, the Board noted that the Veteran does not contend, and the evidence does not otherwise suggest, that the Veteran’s treatment for a left upper extremity rash on August 25, 2015, was authorized in advance. The Veteran is not service-connected for a left upper extremity rash, his left upper extremity rash has not been associated with or held to be aggravating an adjudicated service-connected disability, he does not have a total disability permanent in nature resulting from a service-connected disability, nor is he a participant in an eligible rehabilitation program. Thus, payment or reimbursement of medical expenses pursuant to 38 U.S.C. § 1728 (a) must be denied. The Board will also consider whether payment or reimbursement for emergency services for non-service-connected conditions in non-VA facilities is authorized under 38 U.S.C. § 1725 and 38 C.F.R. §§ 17.1000-1008. The Board finds that the Veteran’s claim for reimbursement fails because, first and foremost, the medical care provided was not provided for a medical emergency as required by law. However, even if the care was provided in the case of a medical emergency, a VA facility was feasibly available for treatment. In reaching this decision, the Board acknowledges the Veteran’s contentions. Specifically, that he sent several messages to his surgeon’s office relating to his rash, that he called the surgery unit on multiple occasions, but that his phone calls were not returned, and that he went to the emergency room as his rash began to spread. Additionally, that the Veteran could not drive himself to the VA hospital in Oklahoma City, as it was over 40 miles away and his arm was in a sling. 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 treatment record from the Veteran’s emergency room visit noted that the Veteran’s symptoms began two weeks prior to his arrival at the non-VA emergency room. Moreover, the Veteran did not appear to be in any severe pain upon arrival. Instead, the physician noted that the Veteran’s symptoms were mild in severity and worsening with time. 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. Further, the record suggests that a VA facility could have provided the services rendered to the Veteran. Moreover, there is no indication, and the Veteran did not allege, that a VA facility could not have provided the Veteran with the necessary medical attention. Instead, the Veteran argued that he was unable to drive himself to the nearest VA facility. Thus, the Board finds that a VA facility was feasibly available for treatment. The Board acknowledges the Veteran’s assertion that he lives over 40 miles from the Oklahoma City VAMC, and that the Veteran’s Choice Act should affect his claim. While the Board has no reason to doubt the Veteran’s assertion, the Board finds the Veteran’s Choice Act does not apply in this case. In that regard, a Veteran eligible for the Veterans Choice Program under § 17.1510 may choose to schedule an appointment with a VA health care provider, be placed on an electronic waiting list for VA care, or have VA authorize the veteran to receive an episode of care for hospital care or medical services under 38 C.F.R. 17.38 from an eligible entity or provider. 38 C.F.R. § 17.1505 specifically defines an appointment as an authorized and scheduled encounter with a health care provider for the delivery of hospital care or medical services. A visit to an emergency room or an unscheduled visit to a clinic is not an appointment. As the Veteran is seeking payment or reimbursement for unauthorized medical expenses incurred at a private emergency department, the Board finds that the Veteran’s Choice Act does not apply in this case. 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