Citation Nr: 22019580 Decision Date: 04/01/22 Archive Date: 04/01/22 DOCKET NO. 19-05 374 DATE: April 1, 2022 ORDER Payment or reimbursement of medical expenses incurred on April 24, 2017, at Beckley Appalachian Regional Hospital (BARH) is denied. FINDINGS OF FACT 1. At the time of the April 24, 2017, episode of care at BARH, the Veteran had a total disability, permanent in nature, resulting from a service-connected disability. 2. The unauthorized non-Department of Veterans Affairs (VA) medical services provided to the Veteran at BARH on April 24, 2017, were not rendered in a medical emergency 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. CONCLUSION OF LAW The criteria for payment or reimbursement of medical expenses incurred on April 24, 2017, at BARH are not met. 38 U.S.C. §§ 1728, 5107; 38 C.F.R. §§ 17.120, 17.121. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1967 to October 1969. This appeal is before the Board of Veterans' Appeals (Board) from an August 2017 decision of the VA Veterans Health Administration. Generally, to receive VA payment or reimbursement of the expenses of non-VA medical services, such non-VA services must be authorized by VA in advance. See 38 U.S.C. § 1703 (2016); 38 C.F.R. § 17.52(a)(3); see also Veterans Community Care Program, 84 Fed. Reg. 26278, 26306 (June 5, 2019). In the absence of such prior authorization, under 38 U.S.C. § 1728, a Veteran who has a total disability, permanent in nature, resulting from a service-connected disability is entitled to payment or reimbursement of unauthorized medical expenses incurred at a non-VA facility when it is also shown that (1) the services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health, and (2) no VA or other Federal facilities were feasibly available and an attempt to use them beforehand would not have been reasonable. 38 U.S.C. § 1728; 38 C.F.R. § 17.120. The provisions of 38 U.S.C. § 1728 are implemented under 38 C.F.R. §§ 17.120-32. For payment under 38 U.S.C. § 1728, the following conditions must be met: Treatment must be rendered in a medical emergency 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 would be met if a situation involved 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 placing the health of the individual in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. 38 C.F.R. § 17.120(b). VA or other Federal facilities that VA has an agreement with to furnish health care services for veterans were not feasibly available, and an attempt to use them beforehand or obtain prior VA authorization for the services required would not have been reasonable, sound, wise, or practicable, or treatment had been or would have been refused. 38 C.F.R. § 17.120(c). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the claimant is afforded the benefit of the doubt. 38 U.S.C. § 5107. Payment or reimbursement of medical expenses incurred on April 24, 2017, at BARH is denied. According to BARH treatment notes, the Veteran was seen at the BARH emergency room (ER) on April 24, 2017, for wound evaluation and suture removal related to a bullet removal in lower extremity for which the Veteran had received emergency treatment approximately three weeks earlier. There was noted to be no drainage or redness and the Veteran denied pain, with only mild tenderness to the wound area. The visit was noted to be non-urgent in triage notes. On evaluation, the sutures were clean, dry, and intact in the lower extremity. Open wound was clean and dry with good granulation tissue. The Veteran had his sutures removed without complication, with no sign of infection noted, and was discharged home. At the time of the April 24, 2017, episode of care at BARH, the Veteran had a recognized total disability, permanent in nature, resulting from a service-connected disability. As reflected in its August 2017 decision and a December 2018 statement of the case, the agency of original jurisdiction denied payment or reimbursement under 38 U.S.C. § 1728 on the bases that the Veteran's episode of care was not authorized by VA and non-emergent, and that VA medical facilities were feasibly available, as the Beckley VAMC was located less than three miles from the BARH ER. The Veteran has submitted several statements, including his August 2017 notice of disagreement, asserting his belief that VA should pay the expenses of the April 24, 2017, episode of care at BARH. However, the Veteran has not asserted, and the record does not indicate, that the April 24, 2017, episode of care at BARH had been authorized by VA. Furthermore, the BARH treatment records are clear that the Veteran's April 24, 2017, episode of care at BARH was not for a medical emergency, but rather was non-emergency follow-upspecifically, suture removalto an emergency hospital visit three weeks prior. The Veteran at that time had only mild tenderness to the wound area, with no emergency symptoms or complications of his sutures or wound. The visit was noted to be non-urgent, and there is no indication that the Veteran believed he was experiencing a medical emergency at the time. There is, in short, no indication that the April 24, 2017, episode of care at BARH was rendered in a medical emergency 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. The Board notes the Veteran's representative's contention in a March 2022 brief that the Board should "consider the continuity of care and the effect [it] has on an individual's health when deciding this case." To the extent that the Veteran's representative might argue that the April 24, 2017, treatment at BARH was continued, non-emergency treatment eligible for payment or reimbursement pursuant to 38 C.F.R. § 17.121, the Board finds that this is not the case. That regulation pertains to circumstances of continued in-patient hospital treatment, following a medical emergency, where a VA facility does not accept transfer of the Veteran for such continued care. It does not pertain to non-emergency follow-up treatment weeks after a medical emergency has ended and the Veteran has been discharged from the non-VA hospital at which he or she was treated for such medical emergency. To the extent that the Board may otherwise "consider the continuity of care and the effect [it] has on an individual's health when deciding this case," no such consideration provides a legal basis for payment or reimbursement of medical expenses under 38 U.S.C. § 1728 and 38 C.F.R. § 17.120, which contain specific legal criteria for such benefits. The Board is bound by this statute and regulation, and may not grant relief where prohibited by them to do so. See 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)"). In this case, the evidence weighs persuasively against a finding that the unauthorized non-VA medical services provided to the Veteran at BARH on April 24, 2017, were rendered in a medical emergency of such nature that delay would have been hazardous to life or health. Accordingly, payment or reimbursement of medical expenses incurred on April 24, 2017, at BARH must be denied. JONATHAN B. KRAMER 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.