Citation Nr: 18136397 Decision Date: 09/18/18 Archive Date: 09/18/18 DOCKET NO. 15-42 009 DATE: September 18, 2018 ORDER Entitlement to payment or reimbursement for the cost of non-VA medical care received from May 2015 to June 2015 at Main Street Family Chiropractic in Newark, Delaware is denied. FINDING OF FACT 1. The Veteran received non-VA medical care from May 2015 to June 2015 at Main Street Family Chiropractor in Newark, Delaware. 2. The non-VA medical care provided was not authorized by VA, there was no indication that it was provided in a medical emergency. CONCLUSION OF LAW The criteria for payment or reimbursement for the cost of non-VA medical care received from May 2015 to June 2015 at Main Street Family Chiropractic in Newark, Delaware are not met. U.S.C. §§ 1703, 1712, 1725, 1728 (2012); 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.55, 17.93, 17.120, 17.161 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Marine Corps (USMC) from May 1979 to November 1996. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 administrative decision issued by the Department of Veterans Affairs (VA) Medical Center in Wilmington, Delaware. Entitlement to payment or reimbursement The Veteran has asserted that payment or reimbursement for the cost of non-VA medical care received from May 2015 to June 2015 at Main Street Family Chiropractic in Newark, Delaware should be made. Specifically, the Veteran has reported that he was unaware that he was not authorized for chiropractic treatment during the above dates. Further, that he was approved for chiropractic treatment prior to and subsequent to the above dates. For various reasons, as discussed in detail below, the Board finds that that payment or reimbursement for the cost of medical care received May 2015 to June 2015 at Main Street Family Chiropractic in Newark, Delaware is not warranted. When VA facilities are not capable of furnishing required care or services, VA may contract with non-VA facilities in order to furnish certain care, including hospital care or medical services for the treatment of medical emergencies that pose a serious threat to the life or health of a Veteran receiving medical services in a VA facility, until such time following the furnishing of care in the non-VA facility as the Veteran can be safely transferred to a VA facility. 38 U.S.C. § 1703 (a)(3) (2012); 38 C.F.R. § 17.52 (2018). The admission of a Veteran to a non-VA hospital at the expense of VA must be authorized in advance. 38 C.F.R. § 17.54 (2018); Malone v. Gober, 10 Vet. App. 539 (1997). In the case of an emergency that existed at the time of admission, an authorization may be deemed a prior authorization if an application is made to VA within 72 hours after the hour of admission. 38 C.F.R. § 17.54 (2018). Initially, the Board emphasizes that the central issue in this case is whether, under 38 U.S.C. § 1703 (a)(1), VA provided prior authorization for the Veteran’s private treatment at Main Street Family Chiropractic beginning May 14, 2015 and ending June 9, 2015. The Board realizes that when the Veteran receives treatment at a non-VA facility without prior authorization, there are two statutes that can allow for him to be paid or reimbursed for the medical expenses incurred for that treatment - specifically, 38 U.S.C. §§ 1725 and 1728. However, neither 38 U.S.C. §§ 1725 and 1728 is applicable here as both of these statutes require that the treatment rendered has to be for “emergency treatment.” There is nothing in the record to suggest, and the Veteran does not contend, that the private treatment received was for an “emergent” circumstance. Therefore, neither 38 U.S.C. §§ 1725 and 1728 pertaining to unauthorized medical expenses applies in this case. Rather, this case turns on whether such treatment was previously authorized by VA under 38 U.S.C. § 1703 (a)(1). The Board finds that the evidence does not suggest that the Veteran’s non-VA medical care was authorized in advance. Indeed, there is a May 2015 note explicitly stating that the additional visits for chiropractic care were not approved. In reaching this decision, the Board acknowledges the Veteran’s contentions. Specifically, that he was unaware that he was not authorized to seek non-VA medical care. The Board finds the Veteran competent to make such a statement; however, the Veteran’s statement is inconsistent with his other statements. In that regard, in a June 2015 email the Veteran acknowledged that he was recently denied non-VA chiropractic care by VA. Indeed, the Veteran even correctly noted the reasons for the denial. Thus, the Board finds that there was no prior authorization to obtain non-VA treatment from May 2015 to June 2015 at Main Street Family Chiropractic. Further, the evidence indicates that the Veteran was aware of that fact. In reaching this decision, the Board is sympathetic to the Veteran’s contentions. Nevertheless, 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. Those governing provisions direct that where, as here, the preponderance of the evidence is against the Veteran’s claim for payment or reimbursement of unauthorized medical expenses, that claim must be denied. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Cannaday, Associate Counsel