Citation Nr: 22018041 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 19-25 186 DATE: March 28, 2022 ORDER Payment or reimbursement of medical expenses incurred from November 2 to 5, 2016, at Parkview Medical Center (PMC) is denied. FINDING OF FACT The Veteran did not receive health care provided or authorized by the Department of Veterans Affairs (VA) within the 24-month period preceding his emergency treatment from November 2 to 5, 2016, at PMC. CONCLUSION OF LAW The criteria for payment or reimbursement of medical expenses incurred from November 2 to 5, 2016, at PMC are not met. 38 U.S.C. §§ 1725, 1728; 38 C.F.R. §§ 17.1000-1008. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January to April 1981. This appeal is before the Board of Veterans' Appeals (Board) from February and March 2017 decisions of the VA Veterans Health Administration. In September 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The Veteran seeks payment or reimbursement of expenses incurred for emergency medical treatment for a hand injury from November 2 to 5, 2016, at PMC. Initially, the Veteran was not permanently and totally disabled due to any service-connected disability or disabilities from November 2 to 5, 2016; also, his treatment at that time was not for any service-connected disability or for any disorder that was aggravated by any service-connected disability. Likewise, the Veteran's treatment was not for any injury or illness contracted in the course of a rehabilitative program. Therefore, the Veteran is not eligible for payment or reimbursement under 38 U.S.C. § 1728 in this case. See 38 U.S.C. § 1728; 38 C.F.R. § 17.120. The Veterans Millennium Health Care and Benefits Act provides general authority for reimbursement for the reasonable value of emergency treatment furnished in a non-VA facility to those Veterans who are active VA health-care participants (i.e., enrolled in the annual patient enrollment system and recipients of a VA hospital, nursing home, or domiciliary care under such system within the last 24-month period) and who are personally liable for such non-VA treatment and not eligible for reimbursement under the provisions of 38 U.S.C. § 1728. 38 U.S.C. § 1725; 38 C.F.R. §§ 17.1000-1008. To be eligible for benefits under 38 U.S.C. § 1725, a Veteran must be an active Department health-care participant, meaning that the Veteran is both enrolled in the VA health care system and received health care provided or authorized by VA (pursuant to 38 C.F.R. § Chapter 17) within the 24-month period preceding the furnishing of such emergency treatment. 38 U.S.C. § 1725(b); 38 C.F.R. § 17.1002(d). Payment or reimbursement of medical expenses incurred from November 2 to 5, 2016, at PMC is denied. As reflected in its February and March 2017 denial letters and May 2019 statement of the case, the agency of original jurisdiction denied the Veteran's claims on the basis that he had not received VA health care within the 24-month period preceding the furnishing of the November 2 to 5, 2016, treatment, as required for reimbursement under 38 U.S.C. § 1725(b) and 38 C.F.R. § 17.1002(d). The record reflectsand the Veteran does not disputethat he had not received VA health care within the 24-month period before November 2, 2016. Rather, as reflected in his March 2017 notice of disagreement, July 2019 substantive appeal, and September 2021 Board testimony, the Veteran asserts that, prior to his emergency treatment from November 2 to 5, 2016, at PMC, he made multiple attempts to schedule appointments at a VA medical facility but was not able to get one, as all appointments were booked up, but that he was not concerned because he was in good health. He further asserts that he was never informed by VA that if did not receive VA care in a 24-month period he would be ineligible for reimbursement benefits for non-VA emergency treatment and was unaware of the requirement. He indicated that he was led to believe that having VA health care coverage was sufficient insurance for medical emergencies, and submitted a January 2017 letter from VA notifying the Veteran, for tax purposes, that he had been enrolled in VA health care with coverage for the year 2016. Unfortunately, in this case, there are no facts that provide a legal basis for the grant of payment or reimbursement of medical expenses under 38 U.S.C. § 1725. While the Veteran had indeed been enrolled in the VA health care system for the year 2016, to be an "active Department health-care participant" eligible for benefits under 38 U.S.C. § 1725, a Veteran must be both enrolled in the VA health care system and received health care provided or authorized by VA within the 24-month period preceding the furnishing of such emergency treatment. 38 U.S.C. § 1725(b); 38 C.F.R. § 17.1002(d). Also, while the Veteran might have unsuccessfully attempted to schedule appointments at a VA medical facility within the 24-month period preceding November 2, 2016, the record does not reflect that he received VA health care during that period as required by the pertinent statute and regulation. See Fritz v. Nicholson, 20 Vet. App. 507, 511-12 (2006) (holding that even where a Veteran had "scheduled the first available appointment to see a VA primary care physician when he enrolled for benefits, but required emergency medical treatment before the scheduled appointment date," § 1725 precluded reimbursement, as its language "explicitly requires a veteran to have received 'care' within the preceding 24 months in order to be eligible for reimbursement or payment of emergency treatment expenses" regardless of any lack of fault on the Veteran's part). The Board is sympathetic to the Veteran's situation. However, it is bound by the statutory eligibility requirements for reimbursement benefits for emergency treatment under 38 U.S.C. § 1725, including that the Veteran be both enrolled in the VA health care system and have received health care provided or authorized by VA within the 24-month period preceding the furnishing of such emergency treatment. See 38 U.S.C. § 1725(b); 38 C.F.R. § 17.1002(d); Fritz, 20 Vet. App. at 511-12; see also 38 U.S.C. § 503(a); Eicher v. Shulkin, 29 Vet. App. 57, 64 (2017) (noting that the VA Secretary alone has the power to grant equitable relief under 38 U.S.C. § 503 and "that the caselaw is clear that both the Board and the Court lack jurisdiction to review the grant of, or refusal to grant, equitable relief under section 503(a)"). The record reflects, and the Veteran does not dispute, that he did not meet this basic legal requirement at the time of his November 2 to 5, 2016, emergency treatment at PMC. Therefore, he is not entitled to payment or reimbursement of the expenses of such treatment under 38 U.S.C. § 1725. Accordingly, payment or reimbursement of medical expenses incurred from November 2 to 5, 2016, at PMC must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Andrew Mack, 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.