Citation Nr: 18161143 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 14-24 435 DATE: December 28, 2018 ORDER Entitlement to payment or reimbursement for the cost of non-VA medical care provided on October 3, 2013, at Shands Jacksonville Medical Center is denied. Entitlement to payment or reimbursement for the cost of non-VA medical care provided on October 13, 2013, at Shands Jacksonville Medical Center is denied. Entitlement to payment or reimbursement for the cost of non-VA medical care provided on October 15, 2013, at Shands Jacksonville Medical Center is denied. FINDINGS OF FACT 1. The non-VA medical care provided on October 3, 2013, was not authorized by VA, and VA facilities were feasibly available to provide the necessary treatment. 2. The non-VA medical care provided on October 13, 2013, was not authorized by VA, and VA facilities were feasibly available to provide the necessary treatment. 3. The non-VA medical care provided on October 15, 2013, was not authorized by VA, and VA facilities were feasibly available to provide the necessary treatment. CONCLUSIONS OF LAW 1. The criteria for payment or reimbursement for unauthorized medical expenses incurred at Shands Jacksonville Medical Center on October 3, 2013, 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). 2. The criteria for payment or reimbursement for unauthorized medical expenses incurred at Shands Jacksonville Medical Center on October 13, 2013, 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). 3. The criteria for payment or reimbursement for unauthorized medical expenses incurred at Shands Jacksonville Medical Center on October 15, 2013, 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 FINDINGS AND CONCLUSIONS The Veteran had active military service from January 1974 to February 1980. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 administrative decision issued by the Department of Veterans Affairs (VA) Medical Center in Gainesville, Florida. The Veteran requested a personal hearing before a member of the Board on his June 2014 substantive appeal. The Veteran was scheduled for his requested hearing on September 12, 2018. However, the Veteran did not appear at a hearing before the Board. As such, the request for a Board hearing is deemed withdrawn. 38C.F.R. §20.704(d) (2018). Medical reimbursement for October 3, 13, and 15, 2013. At the outset, the Veteran does not contend, and the evidence does not otherwise suggest, that the Veteran’s treatment on October 3, 13, and 15, 2013, was authorized in advance. Nevertheless, VA may reimburse Veterans for unauthorized medical expenses incurred in non-VA facilities; however, 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 Board finds that the Veteran’s claims for reimbursement for October 3 and 15, 2013, treatment fail 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. Similarly, the claim for reimbursement for treatment on October 13, 2013, fails because a VA facility was feasibly available for treatment. In reaching this decision, the Board acknowledges the Veteran’s contentions. Specifically, that on October 13, 2015, he initially went to a VA facility; however, that the wait was too long. The Veteran asserted that his head began to ache, that his eyes watered, and that everything became fuzzy while waiting on VA treatment. He asserted that the wait at the VA clinic was too long, and that he needed immediate medical attention. He asserted that he received medication for his abcess when he arrived at the private hospital. Next, the Veteran asserted that on October 15, he went to his primary care doctor to have treatment for his abcess. He stated that he was advised to return to the private hospital to finish the medical process. He stated that he walked to the private hospital, and that his abcess was drained. After the Veteran received additional treatment, he asserted that he was told to return to his primary care physician for medication. While the Veteran made the above contentions for his October 13 and 15, 2015, treatment, the Board notes that other than expressing general disagreement with the November 2013 administrative decision denying reimbursement for October 2015 treatment, it does not appear that the Veteran has submitted any additional argument in an effort to substantiate his claim. The Board notes that while the Veteran is competent to report his experience while seeking treatment, the Board finds that his statements regarding being sent to the private hospital are not credible as his statements are inconsistent with the other evidence of record. In this regard, the Veteran asserted that on October 13, 2015, he asked how long he would have to wait, then he left the VA facility and walked to the private hospital. Conversely, the Veteran also asserted that the VA sent him to the private hospital emergency room for treatment. Moreover, the Veteran’s statements are inconsistent with the medical evidence of record. The medical record indicates that the Veteran initially sought treatment at a VA facility for his ailment on October 1, 2013. An October 1, 2013, VA treatment note indicates that the Veteran was called twice for treatment, but he had left the facility without being seen. Medical treatment records from the Veteran’s October 3, 2013, emergency room visit noted that Veteran’s symptoms began a week prior to his seeking medical attention. Further, the medical record reflects that the Veteran walked into the private hospital, and was listed as less urgent. However, a medical note indicated that he Veteran’s condition was listed as emergent as an impairment of bodily function. Nevertheless, even if the care was provided in the case of a medical emergency, there is no indication that a VA facility could not have provided the Veteran with the necessary medical attention. Indeed, the record reflects that the VA facility in Gainesville and Lake City, Florida were available for treatment. Thus, the Board finds that a VA facility was feasibly available for treatment. Further, an October 13, 2013, medical note indicates that the Veteran sought treatment for his abcess after the abcess opened and began draining while in the shower earlier that morning. An incision and drainage was performed at the private hospital, the Veteran was given motrin and instructed to follow-up with his primary care physician in 48 hours or return to the emergency department if he was unable to see his physician. While that may be 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; 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 has alleged that the wait time at the VA facility treatment was generally too long. Indeed, the record reflects that the VA facility in Gainesville and Lake City, Florida were available for treatment. Thus, the Board finds that a VA facility was feasibly available for treatment. Further, the record reflects that on October 15, 2013, the Veteran returned to the private hospital for a follow-up visit. Once again, he was listed as less urgent. However, the private medical record notes that the Veteran’s condition was emergent due to severe pain and the acute onset of symptoms. The record reflects that the Veteran returned to the private hospital to have a re-check of his scalp abcess. Indeed, the Veteran was noted as status post incision and drainage of scalp abcess. At that time, the Veteran reported mild drainage from the abcess, but stated that he felt much better. On re-evaluation, the Veteran had a well healed incision and drainage to scalp, he was advised to continue wound precautions, and to return to the emergency department if symptoms worsened. Once again, 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. Thus, the Board finds that a VA facility was feasibly available for treatment. 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