Citation Nr: 20009630 Decision Date: 02/05/20 Archive Date: 02/05/20 DOCKET NO. 17-55 939A DATE: February 5, 2020 ORDER Entitlement to payment or reimbursement for unauthorized non-VA medical treatment and services rendered at UMass Memorial Medical Center (UMass) on December 16, 2015, is denied. FINDINGS OF FACT 1. The Veteran was treated at UMass on December 16, 2015. 2. In June 2016, the Department of Veterans Affairs (VA) received a claim for payment of medical expenses incurred in connection with the Veteran’s care at UMass on December 16, 2015. 3. In October 2016, VA received a claim for payment of medical expenses incurred in connection with the Veteran’s care at UMass Memorial Medical Group on December 16, 2015. 4. The claim for payment or reimbursement of medical expenses was received more than 90 days after the Veteran’s discharge from the private facility. CONCLUSION OF LAW The criteria for entitlement to payment or reimbursement of unauthorized medical expenses rendered at UMass on December 16, 2015, have not been met. 38 U.S.C. § 1725; 38 C.F.R. § 17.1004. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 2002 to April 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2016 decision by the VA Medical Center. In November 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. At the November 2019 Board hearing, the Veteran testified for the issues of entitlement to service connection for an acquired psychiatric disability and service connection for a bilateral knee disability. However, those issues will be decided at a later date. Entitlement to payment or reimbursement for unauthorized non-VA medical treatment and services rendered at UMass on December 16, 2015. The Veteran contends that on December 16, 2015, she woke up in the middle of the night with severe stomach pain and the pain was unbearable. See November 2017 Substantive Appeal. She further reported that she lived over 90 miles away from the Boston VA facility, the pain was so unbearable that she could not drive or barely walk, and an ambulance took her to the nearest medical facility. Generally, in order to be entitled to payment or reimbursement of private medical expenses not previously authorized, a claimant must satisfy the conditions outlined by 38 U.S.C. § 1728 or 38 U.S.C. § 1725 and the implementing regulations. As relevant here, a reimbursement claim under 38 U.S.C. § 1725 must be filed within 90 days of the latest of the following: 1) the date that the Veteran was discharged from the facility that furnished the emergency treatment; 2) the date of death, but only if the death occurred during transportation to a facility for emergency treatment or if the death occurred during the stay in the facility that included the provision of the emergency treatment; or 3) the date the Veteran finally exhausted, without success, action to obtain payment or reimbursement for the treatment from a third party. See 38 C.F.R. § 17.1004. In the instant case, in June and October 2016, VA received the claims seeking payment or reimbursement from the vendor for services rendered to the Veteran on December 16, 2015. In the Veteran’s August 2017 Notice of Disagreement and November 2017 Substantive Appeal, the Veteran stated that her claim was filed outside of the 90-day window because she thought the bill would be paid by her training facility. The Veteran further reported that once her claim was denied by the training facility, she filed a claim with VA. (Continued on the next page)   However, at the November 2019 Board hearing, the Veteran testified that she gave UMass her VA medical card because she believed that the VA would cover her emergency care, but months later she was informed that it was denied. She further reported that she went to the VA to try to have them pay it through fee basis, but she was informed that the claim was not filed in a timely manner. After VA denied the claim, the Veteran testified that she tried to get her training facility to pay the bill. Therefore, the Board finds that 38 C.F.R. § 17.1004 (d)(3) is not applicable in this because the Veteran testified that she tried to get her training facility to pay the UMass bill after VA denied her claim. Under the law, the claim cannot be granted unless all the requirements provided under 38 C.F.R. §§ 17.1001-1008, including the filing requirements under 38 C.F.R. § 17.1004, are met. Simply stated, the Veteran’s claim for payment or reimbursement of medical expenses was received more than 90 days after her discharge from the private facility and, for that reason, the claim must be denied. Where the law and not the evidence is dispositive, the claim should be denied because of the absence of legal merit or the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board does not have equitable authority to render a different decision. For these reasons, the appeal is denied as a matter of law. Matthew Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brennae L. Brooks, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.