Citation Nr: 19129772 Decision Date: 04/17/19 Archive Date: 04/16/19 DOCKET NO. 16-61 239 DATE: April 17, 2019 ORDER Payment or reimbursement for the cost of non-VA medical care the Veteran received at Bangkok Hospital from May 22, 2016 through May 26, 2016 is denied. Payment or reimbursement for the cost of non-VA medical care the Veteran received at Bangkok Hospital on May 27, 2018 is denied. REMANDED The issue of whether payment or reimbursement is warranted for non-VA medical care the Veteran received at Bangkok Hospital on March 20, 2017 is remanded. FINDINGS OF FACT 1. The Veteran received treatment at Bangkok Hospital in Thailand from May 22, 2016 through May 26, 2016 for an abdominal aorta aneurysm. 2. The Veteran received treatment at Bangkok Hospital in Thailand on May 27, 2018 for cardiac care services. 3. The Veteran is not service-connected for abdominal aorta aneurysm or any other cardiac condition, nor is his abdominal aorta aneurysm or any other cardiac condition associated with or aggravated by any service-connected disability. 4. The Veteran has not been a participant in a rehabilitation program under 38 U.S.C. Chapter 31. CONCLUSIONS OF LAW 1. The criteria for payment or reimbursement for the cost of non-VA medical care the Veteran received at Bangkok Hospital from May 22, 2016 through May 26, 2016 are not met. 38 U.S.C. §§ 1703, 1724; 1725, 1728, 5107; 38 C.F.R. §§ 17.35, 17.52, 17.53, 17.54, 17.120, 17.121, 17.1002. 2. The criteria for payment or reimbursement for the cost of non-VA medical care the Veteran received at Bangkok Hospital on May 27, 2018 are not met. 38 U.S.C. §§ 1703, 1724; 1725, 1728, 5107; 38 C.F.R. §§ 17.35, 17.52, 17.53, 17.54, 17.120, 17.121, 17.1002. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from June 1963 to May 1976. This case comes before the Board of Veterans’ Appeals (Board) on appeal from June 2016, May 2017, and August 2018 denial of benefits decisions. The Veteran’s claims for payment or reimbursement for the cost of non-VA medical care the Veteran received at Bangkok Hospital from May 22, 2016 through May 26, 2016 and May 27, 2018 were denied because the Veteran did not meet the criteria under 38 U.S.C. § 1724 and 38 C.F.R. § 17.35 as his abdominal aorta aneurysm and cardiac condition were not service-connected conditions and were not associated with or held to be aggravated by a service-connected condition. See August 2016 decision; October 2016 statement of the case; August 2018 decision; October 2018 statement of the case. The Veteran contends that he is entitled to reimbursement for his emergency surgery for an abdominal aorta aneurysm for which he was treated at Bangkok Hospital from May 22, 2016 through May 26, 2016. The Veteran states that 38 U.S.C. § 1724 and 38 C.F.R. § 17.35 are not applicable to his claim as his treatment was for an emergency condition. The Veteran submitted a letter from his wife and a June 2016 letter from treating physician in Thailand confirming that surgery was required and that he was unable to fly to the United States due to the risk of rupture during the 30-hour flight. He asserts that since his abdominal aorta aneurysm surgery was an emergency surgery, the applicable regulations are 38 U.S.C. §§ 1725 and 1728. In this regard, the Veteran contends that since he has been granted a total rating based on individual unemployability due to a service connected disability (TDIU), he is entitled to reimbursement for treatment of any condition pursuant to 38 U.S.C. § 1728. See May through August 2016 e-mails from Veteran; October 2016 VA Form 9; April 2018 report of general information; January and February 2019 statements from the Veteran’s representative. He further asserts that, if 38 U.S.C. § 1728 does not apply to his claim, then he should be granted payment under 38 U.S.C. § 1725 as he meets all requirements of 38 U.S.C. § 1725, including receiving medical treatment in the 24 months preceding his claim. See July 2017 statement; August 2017 correspondence; February 2019 statement from the Veteran’s representative. In the Veteran’s claim for reimbursement for his treatment at Bangkok Hospital on May 27, 2018, the Veteran similarly argues that the AOJ failed in applying 38 U.S.C. § 1724 to his claim and that the AOJ should have granted his claim pursuant to 38 U.S.C. §§ 1725 and 1728 as his condition was emergent. See February 2019 statement from the Veteran’s representative; November 2018 VA Form 9; October 2018 VA Form 9; August 2018 notice of disagreement. He further asserts that he was told by a VA staff member to go directly to the emergency room or hospital and he includes an April 2018 e-mail from a VA staff member, I.M., to support this assertion. In general, if VA is to provide payment or reimbursement of medical expenses incurred in connection with a veteran’s care at a non-VA hospital, the care must be authorized in advance. See 38 U.S.C. § 1703; 38 C.F.R. § 17.54. In regard to the Veteran’s treatment at Bangkok Hospital from May 22, 2016 through May 26, 2016, the Board acknowledges that that the Veteran attempted to obtain authorization for his treatment. He sent an e-mail to the VA on May 5, 2016 in which he noted that a stent would be required and that flying back to the United States was out of the question. In regard to the May 2018 treatment, the Board also acknowledges that the Veteran was advised to go the nearest hospital or emergency room immediately since his cardiac symptoms were worsening. See May 2018 e-mail from I.M. at the VA. However, the advice was provided on May 1, 2018 and the Veteran’s claim for reimbursement is for treatment on May 27, 2018. The Veteran did not receive authorization for his May 22, 2016 through May 26, 2016 or his May 27, 2018 treatments and his treatments would not have been authorized in advance as they were not for a service-connected condition or related to a service-connected condition. Hospital care, medical services and nursing home care abroad is governed by 38 U.S.C. § 1724, which states, in pertinent part: (a) Except as provided in subsections (b) and (c), the Secretary shall not furnish hospital or domiciliary care or medical services outside any State.” Subsections (b) and (c) are as follows: (b)(1) The Secretary may furnish hospital care and medical services outside a State to a veteran who is otherwise eligible to receive hospital care and medical services if the Secretary determines that such care and services are needed for the treatment of a service-connected disability of the veteran or as part of a rehabilitation program under chapter 31 of this title [38 U.S.C.S §§ 3100 et seq.]. (2) Care and services for a service-connected disability of a veteran who is not a citizen of the United States may be furnished under this subsection only-- (A) if the veteran is in the Republic of the Philippines or in Canada; or (B) if the Secretary determines, as a matter of discretion and pursuant to regulations which the Secretary shall prescribe, that it is appropriate and feasible to furnish such care and services. (c) Within the limits of those facilities of the Veterans Memorial Medical Center at Manila, Republic of the Philippines, for which the Secretary may contract, the Secretary may furnish necessary hospital care to a veteran for any non-service-connected disability if such veteran is unable to defray the expenses of necessary hospital care. The Secretary may enter into contracts to carry out this section. 38 C.F.R. § 17.35 states: §17.35 Hospital care and outpatient services in foreign countries. (a) Under the VA Foreign Medical Program, VA may furnish hospital care and outpatient services to any veteran outside of the United States, without regard to the veteran’s citizenship: (1) If necessary for treatment of a service-connected disability, or any disability associated with and held to be aggravating a service-connected disability; (2) If the care and services are furnished to a veteran participating in a rehabilitation program under 38 U.S.C. chapter 31 who requires care and services for the reasons enumerated in §17.47(i)(2). (b) Under the Foreign Medical Program, the care and services authorized under paragraph (a) of this section are available in the Republic of the Philippines to a veteran who meets the requirements of paragraph (a) of this section. VA may also provide outpatient services to a veteran referenced in paragraph (a)(1) in the VA outpatient clinic in Manila for the treatment of such veteran’s service-connected conditions within the limits of the clinic. Non-service connected conditions of a veteran who has a service-connected disability may be treated within the limits of the VA outpatient clinic in Manila. (c) Claims for payment or reimbursement for services not previously authorized by VA under this section are governed by §§17.123-17.127 and 17.129-17.132. The Board finds that 38 U.S.C. § 1724 and its implementing regulation, 38 C.F.R. § 17.35, are the appropriate statute and regulation in this case. The Board acknowledges that VA is authorized to reimburse veterans for emergency medical treatment under 38 U.S.C. § 1725 and 38 U.S.C. § 1728; however, the Board finds these statutes are not applicable for services performed outside of the United States. As noted above, 38 U.S.C. § 1724 governs “hospital care, medical services and nursing home care abroad” and specifically provides “Except as provided in subsections (b) and (c), the Secretary shall not furnish hospital or domiciliary care or medical services outside any State”. 38 U.S.C. § 1724(a). Further, pursuant to 38 U.S.C. § 1725(f)(1), the term “emergency treatment” is defined as “medical care or services furnished, in the judgment of the Secretary…” Accordingly, by definition “emergency treatment” is encompassed by the term “medical services” in 38 U.S.C. § 1724 and this statute applies to both emergency and non-emergency treatment abroad. Even more, the implementing regulation for 38 U.S.C. 1728, 38 C.F.R. § 17.120, specifically states that emergency treatment for any disability of a veteran who has a total disability permanent in nature resulting from a service-connected disability treatment does not apply to services provided outside the States, Territories, and possessions of the United States, the District of Columbia, and the Commonwealth of Puerto Rico. See 38 C.F.R. § 17.120(a)(3). Although the Veteran is in receipt of TDIU, as the Veteran resides in Thailand and is seeking authorization for treatment in Thailand, reimbursement may not be granted under the provisions of 38 C.F.R. § 17.120(a)(3). Service connection is not in effect for the Veteran’s abdominal aorta aneurysm and/or any other cardiac condition. The Veteran’s treatment at Bangkok Hospital on May 22, 2016 through May 26, 2016 was for his abdominal aorta aneurysm. See May 2016 Bangkok Hospital treatment records. The Veteran’s treatment on May 27, 2018 was related to his cardiac conditions, to include a coronary angiography, aortogram, and a vein graft angiogram. See May 2018 Bangkok Hospital treatment records. The Veteran does not contend, and the evidence does not show, that his May 22, 2016 through May 26, 2016 and/or his May 27, 2018 treatment at Bangkok Hospital is related to a service-connected disability. Further, the Veteran was not part of a rehabilitation program under 38 U.S.C. Chapter 31. Accordingly, as the requirements for medical treatment abroad have not been met, the Veteran’s claim for payment or reimbursement for the cost of non-VA medical care the Veteran received at Bangkok Hospital from May 22, 2016 through May 26, 2016 and on May 27, 2018 must be denied. While the Board is sympathetic to the Veteran’s contentions, it is bound by the law, and this decision is dictated by the relevant statutes and regulations. REASONS FOR REMAND The Veteran’s March 20, 2017 treatment was for a head injury. He contends that his head injury occurred because he fell face forward due to his right hand failing to support him. See May 2018 VA Form 9; February 2018, April 2018, and May 2018 e-mails from the Veteran. Service connection is in effect for De Quervain’s disease of the right wrist with radial sensory neuroma. A March 20, 2017 private treatment record shows chronic wound on the forehead. The original document in the paper claims file does not show any additional information in the diagnosis section. However, the same medical record was submitted by the Veteran on September 24, 2018 and electronically associated with the claims file. On this version, it appears that the Veteran notated on the record that the wound was caused by his right wrist collapsing. See March 20, 2017 medical record from Bangkok Hospital. A VA medical opinion is warranted regarding whether the Veteran’s head injury on March 20, 2017 was associated with or aggravated by his service-connected De Quervain’s disease of the right wrist with radial sensory neuroma. Any additional private treatment records regarding the Veteran’s March 20, 2017 treatment at Bangkok Hospital must be obtained on remand. Additionally, the initial decision from the AOJ, which the Statement of the Case shows was issued on May 1, 2017, is not associated with the claims file, and must be obtained on remand. The matter is REMANDED for the following action: 1. Associate with the claims file the initial decision from the AOJ, which the Statement of the Case shows was issued on May 1, 2017. If this cannot be obtained after reasonable efforts have been made, issue a formal finding that such record does not exist or that further efforts to obtain such record would be futile, which should be documented in the claims file. 2. After obtaining any necessary authorization from the Veteran, obtain and associate with the claims file, any additional private treatment records related to the Veteran’s private treatment at Bangkok Hospital on March 20, 2017. Any negative response should be in writing and associated with the claims file. 3. After any additional evidence has been associated with the claims file, request a VA medical opinion. The VA medical examiner must review the claims file and opine as to whether it is at least as likely as not that the Veteran’s forehead wound for which he was treated at Bangkok Hospital on March 20, 2017 was caused or aggravated by his service-connected De Quervin’s disease of the right wrist with radial sensory neuroma. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Samuelson, Counsel