Citation Nr: A25035139 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 210422-225316 DATE: April 16, 2025 ORDER Entitlement to payment of unauthorized non-Department of Veterans Affairs (VA) medical expenses in the amount of $482.72 incurred by the Veteran on November 4, 2019, is denied. FINDING OF FACT The Appellant's claim for payment of $482.72, referenced as Claim ID 302031000039774000 and reconsidered as Claim ID 302112600046975000, was received by VA on October 25, 2020. It was not received by VA within 90 days (or even 180 days) of the date that the Veteran was discharged from the facility that furnished the emergency treatment. CONCLUSION OF LAW The criteria for payment of unauthorized non-VA medical expenses in the amount of $482.72 incurred by the Veteran on November 4, 2019, have not been met. 38 U.S.C. §§ 1725, 5107; 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120, 17,121, 17.1000-17.1008. REASONS AND BASES FOR FINDING AND CONCLUSION The Appellant in this case is Travis County Emergency Physicians PA, the provider who rendered medical care to the Veteran on the November 4, 2019, date of service. The Appellant seeks payment of unauthorized non-VA medical expenses in the amount of $482.72 incurred by the Veteran on November 4, 2019. This matter comes before the Board of Veterans' Appeals (Board) on appeal from decisions issued by the Veterans Health Administration (VHA). Specifically, the VHA issued a decision on November 7, 2020, that denied the Appellant's claim on the basis that it was filed outside of the 90-day timely filing deadline. See 38 C.F.R. § 17.1004(D). In the April 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Appellant elected the Direct Review docket under the modernized appeal review system ("AMA"). The Board notes that the Appellant subsequently requested reconsideration of VHA's November 7, 2020, decision and that another decision was issued by the VHA on May 11, 2021. In its "reconsideration decision," the VHA once again denied the Appellant's claim on the basis that it was filed outside of the 90-day timely filing deadline. See 38 C.F.R. § 17.1004(D). Notwithstanding the foregoing, the Appellant's appeal is properly before the Board for de novo review. Given the Appellant's Direct Review docket election, the Board may only consider the evidence of record at the time of the Agency of Original Jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. If the Appellant would like VA to consider any evidence that was submitted that the Board could not consider, the Appellant may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim(s), considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Entitlement to payment of unauthorized non-VA medical expenses in the amount of $482.72 incurred by the Veteran on November 4, 2019. The Appellant is claiming entitlement to reimbursement for the costs associated with non-VA emergency treatment rendered to the Veteran on November 4, 2019. The Appellant contends that the claim should not have been denied based on being untimely filed because the Veteran had not provided accurate insurance information when he was registered for emergency treatment. VA has several authorities to pay or reimburse emergency treatment furnished by a non-VA medical facility. In this case, there is no indication in the record or assertions from the Veteran or the Appellant that prior authorization was given for the treatment that the Veteran received on November 4, 2019. In the absence of prior authorization for medical services, there is no factual or legal basis for payment or reimbursement by VA under 38 U.S.C. § 1703 and 38 C.F.R. §§ 17.52, 17.53, and 17.54 for contracted medical services at a non-VA facility. It is important for the Appellant to understand that the ability of the VA to pay for such services is highly limited. Furthermore, there is no medical evidence of record nor assertion by the Veteran or Appellant that the emergency treatment was provided for an adjudicated service-connected disability, a disability aggravated by a service-connected disability, any disability of a veteran with permanent and total disability, or any disability of a veteran who participated in a vocational rehabilitation program and needed treatment to continue training. Because the Veteran did not meet the criteria for payment of emergency medical expenses under 38 U.S.C. § 1728 on the date in question, the claim for reimbursement must be considered under 38 U.S.C. § 1725, as implemented by 38 C.F.R. §§ 17.1000-17.1008. As relevant here, a payment or 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, the evidence from the AOJ (including a summary of findings from the various VA databases that were reviewed) reflects that the Veteran was discharged from the Christus St. Michael Health System emergency room on November 19, 2019, and that the Appellant's claim for payment of unauthorized non-VA medical services was not received by VA until October 25, 2020. The Board notes that any filing date after February 17, 2020, would place the receipt date of the claim outside of the 90-day window allowed for the timely filing of claims under 38 U.S.C. § 1725. The Appellant has not disputed the fact that the claim was filed late. Rather, the Appellant believes that the 90-day window should be tolled because the Veteran provided inaccurate insurance information during emergency room registration. Here, regrettably, VA received the Appellant's claim for payment of the unauthorized non-VA medical expenses well outside of the 90-day window for timely filing. 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 Appellant's claim for payment of unauthorized medical expenses was received more than 90 days after the 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 observes that during the pendency of the appeal, 38 U.S.C. § 1725(f) was updated, stating that for payment of unauthorized medical expenses, the claim shall be submitted not later than 180 days after the latest date on which such treatment was provided. Thus prior to December 2022, under § 1725, the timely filing deadline was 90 days. After December 2022, it was 180 days. However, even if the Board were to apply the amended statute (which was not in effect when the Appellant submitted its original claim on behalf of the Veteran), the fact remains that the Appellant submitted his reimbursement claim in October 2020 which was more than 180 days after the date that treatment was provided in November 2019. The Board has considered the Appellant's statements discussing why the Appellant's claim submission was untimely. The Board truly sympathizes with the Appellant's request for equitable relief in this case. However, the laws and regulations governing payment or reimbursement for emergency medical treatment expenses establish very specific eligibility requirements for such benefits. The Board, as a legal body of statutory creation, is bound by such authority, and does not have the authority to grant the claim on an equitable basis. See 38 U.S.C. §§ 503, 7104. As the Board is constrained to follow the specific provisions of the law, the claim of entitlement to payment of unauthorized non-VA medical expenses in the amount of $482.72 incurred by the Veteran on November 4, 2019, is denied. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael L. Marcum, 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.