Citation Nr: A21020116 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 200227-70428 DATE: December 16, 2021 ORDER Entitlement to payment or reimbursement for unauthorized medical expenses incurred at the Beverly Hills Center for Arthroscopic and Outpatient Surgery from June 25, 2014 to September 16, 2015 is denied. FINDINGS OF FACT 1. Between June 25, 2014 and September 16, 2015, without prior authorization from VA, the Veteran received care and underwent right knee surgery at the Beverly Hills Center for Arthroscopic and Outpatient Surgery. 2. The treatment received from June 25, 2014 to September 16, 2015 was not provided in a hospital emergency care or as part of a medical emergency of such nature that delay would have been hazardous to life or health, and a prudent layperson would not believe that a delay in seeking immediate medical attention would have been hazardous to life or health. CONCLUSION OF LAW The criteria for payment or reimbursement for medical expenses incurred at the Beverly Hills Center for Arthroscopic and Outpatient Surgery from June 25, 2014 to September 16, 2015, are not met. 38 U.S.C. §§ 1703, 1725, 1728, 5107; 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120, 17.121, 17.1002. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1989 to August 2009. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2020 Appeals Modernization Act (AMA) decision that considered the evidence of record on that date. In its decision, the Agency of Original Jurisdiction (AOJ) denied the claim on appeal. The Veteran timely appealed this decision to the Board by requesting the AMA Direct Review lane for a reevaluation of the evidence considered by the AOJ. As this is a Direct Review appeal under the AMA, the record closed on the date of the March 2020 decision. Laws and Analysis The evidence of record shows that the Veteran sustained an injury to her right knee while at home in April 2013. See Veteran's Notice of Disagreement. The Veteran indicated that she immediately went to the emergency department and was referred to a knee surgeon. Between June 25, 2014 to September 16, 2015, the Veteran received care and underwent right knee surgery at the Beverly Hills Center for Arthroscopic and Outpatient Surgery. See operative report dated July 3, 2014 and August 12, 2014. In the Veteran's case, service connection is in effect for various disabilities, to include major depressive disorder and posttraumatic stress disorder, evaluated as 100 percent disabling since August 4, 2013. The Veteran's right knee is not a service connected disability. None of her disabilities have been found to be total and permanent under 38 C.F.R. § 3.340 (b). 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); 38 C.F.R. § 17.5. 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. In relevant part, 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. When a Veteran receives treatment at a non-VA facility without prior authorization, two statutes allow for payment or reimbursement for the medical expenses incurred for that treatment, 38 U.S.C. §§ 1725 and 1728. In part, under 38 U.S.C. § 1728, in order to be entitled to payment or reimbursement of medical expenses incurred at a non-VA facility, there must be a showing that three criteria are met: (a) the care and services rendered were either: (1) for an adjudicated service-connected disability, (2) for a nonservice-connected-disability associated with and held to be aggravating an adjudicated service-connected disability, (3) for any disability of a Veteran who has a total disability, permanent in nature, resulting from a service-connected disability, or (4) for any injury, illness, or dental condition in the case of a Veteran who is participating in a rehabilitation program and who is medically determined to be in need of hospital care or medical services for reasons set forth in 38 C.F.R. § 17.47 (i) (formerly § 17.48(j) (2000)); and (b) the treatment was for a medical emergency of such nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health; and (c) VA or other Federal facilities were not feasibly available and an attempt to use them beforehand or obtain prior authorization for the services required would not have been reasonable, sound, wise, or practicable, or treatment had been or would have been refused. 38 U.S.C. § 1728; 38 C.F.R. § 17.120. The Board finds that, although the Veteran first sought care at the emergency room following her accident in April 2013, treatment for her knee, including knee surgery (for which she seeks payment or reimbursement), was first conducted over a year later in June 2014. The evidence does not show, and the Veteran does not contend, that her treatment and right knee surgery in 2014 was due to a service-connected disability, or that it was due to a nonservice-connected disability associated with and held to be aggravating a service-connected disability. At the time of the surgery, the Veteran did not have a total disability permanent in nature from a service-connected disability. Further, the treatment at issue was not for any injury or illness contracted in the course of a rehabilitative program. Consequently, the Veteran is not eligible for payment or reimbursement under 38 U.S.C. § 1728. See 38 C.F.R. § 17.120. VA payment or reimbursement for private emergency medical treatment may also be considered under 38 U.S.C. § 1725. There are three primary requirements for payment or reimbursement under this statute. The Veteran must be treated at an emergency department or similar facility held out as providing emergency treatment to the public. The treatment received must be for 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. This standard is met if there is an emergency medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) that a prudent layperson who possesses an average knowledge of health and medicine could reasonably expect the absence of immediate medical attention to result in serious dysfunction of any bodily organ or part. Additionally, a VA or federal facility must not be feasibly available to provide the treatment. 38 C.F.R. § 17.1002 (a-c). All of these criteria must be met for VA to grant payment or reimbursement for private emergency treatment under 38 U.S.C. § 1725. The Veteran does not meet the criteria for reimbursement under 38 U.S.C. § 1725 because the preponderance of the evidence indicates that services were not rendered in a medical emergency setting of such nature that delay would have been hazardous to life or health, and a prudent layperson in the Veteran's position would not have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. Both medical and lay evidence may be considered in a prudent layperson evaluation for determining what constitutes a "medical emergency." That is, VA should weigh "the totality of the circumstances" to determine whether a prudent layperson would consider the situation emergent. Swinney v. Shinseki, 23 Vet. App. 257, 264-266 (2009). As noted above, the Veteran's initial emergency care, at the time of her accident, occurred in 2013, after the Veteran sustained an injury to the right knee in her home. However, she does not seek payment or reimbursement of these medical costs associated with her emergency room visit. Instead, the Veteran requests medical payment or reimbursement of expenses incurred in 2014 as a result of right knee surgery, conducted almost a year after the initial injury. This delay in surgical treatment indicates that there was not a need for immediate intervention, and this would have been clear to the Veteran and to any prudent layperson after the 2013 emergency room evaluation. As noted in her Notice of Disagreement, the Veteran herself indicated that she was referred to a surgeon by the emergency department following her initial visit. The Veteran had ample time to contact VA and to request that arrangements be made for her right knee surgery through a VA facility. The evidence of record at the time of the March 2, 2020 VA decision does not show that the Veteran requested pre-authorization from VA. The Board therefore finds that a prudent layperson who possesses an average knowledge of health and medicine would not have believed that the care and surgery received in 2014 was emergency medical treatment, or that without such immediate treatment would cause serious impairment to bodily functions, serious dysfunction of any bodily organ, or other injury which posed a serious threat to general health, and that it was not, in fact, a procedure performed due to a medical emergency of such nature that delay would have been hazardous to life or health. See 38 U.S.C. §§ 1725. The Veteran's request for payment or reimbursement also fails to meet the criteria under 38 U.S.C. § 1725 because the treatment she received in 2014 was not at a hospital emergency department or similar facility held out as providing emergency care to the public. The care and surgery conducted in 2014 was not performed immediately after or as part of a series of emergency treatment for the Veteran's treatment at the emergency room in 2013. 38 C.F.R. § 17.1002 (a). The Board acknowledges the Veteran's assertions that she did not know prior authorization was required. However, the lack of knowledge of pertinent VA regulations cannot be the basis for allowance of a benefit. In this regard, the Supreme Court of the United States has held that those engaging with the government are charged with knowledge of federal statutes and lawfully promulgated agency regulations. Fed. Crop Ins. Corp v. Merrill, 332 U.S. 380, 384, 68 S. Ct. 1, 92 L. Ed. 10 (1947). The applicable regulations are binding on all who seek to come within their sphere, "regardless of actual knowledge of what is in the [r]regulations or of the hardship resulting from innocent ignorance." Id. at 385. The Board therefore finds that the requirements for reimbursement under 38 U.S.C. §§ 1703, 1725 have not been met. As all provisions must be met to establish entitlement to reimbursement, the Board need not further discuss the remaining criteria needed for payment or reimbursement of medical expenses. See Melson v. Derwinski, 1 Vet. App. 334 (1991). The Board has considered the doctrine of reasonable doubt; however, that doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves the claim. In this case, the preponderance of the evidence is against the Veteran's claim. Therefore, the doctrine of reasonable doubt is not applicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The appeal in this matter is denied. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Casadei, 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.