Citation Nr: 1320799	
Decision Date: 06/27/13    Archive Date: 07/05/13

DOCKET NO.  12-34 797	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Portland, Oregon


THE ISSUE

Entitlement to payment or reimbursement of outpatient medical services received at a private facility on November 21, 2011.


REPRESENTATION

Appellant represented by:	Oregon Department of Veterans' Affairs


ATTORNEY FOR THE BOARD

John Kitlas, Counsel


INTRODUCTION

The Veteran served on active duty from September 1946 to March 1950.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2012 determination by the Department of Veterans Affairs (VA) Medical Center (MC) in Portland, Oregon, which determined that the Veteran was not entitled to reimbursement of medical expenses for private outpatient service received on November 21, 2011.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

Payment or reimbursement of the cost of the private medical care received on November 21, 2011, at the private medical facility, was authorized in advance by VA by way of individual authorization. 


CONCLUSION OF LAW

The criteria are met for authorization of payment or reimbursement of medical expenses incurred as a result of private treatment on November 21, 2011.  38 U.S.C.A. §§ 1703, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 17.52, 17.53, 17.54 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  

As this case concerns a legal determination of whether the Veteran is entitled to reimbursement for medical expenses, the provisions of the VCAA are not applicable.  Even if the VCAA were for application, however, any discussion of VA's duty to notify and assist would be unnecessary in light of the Board's decision to grant the Veteran's claim in full. 

The Board notes that it has thoroughly reviewed the record in conjunction with this case.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence).  Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims.  See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant).  

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C.A. § 5107(b).  When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant.  Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102.  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).  

In order to be admitted to a non-VA facility at VA expense, the admission must be authorized in advance by VA (or within 72 hours in the case of an emergency).  See 38 C.F.R. § 17.54.  The provisions of 38 U.S.C.A. § 1703 allow for "individual authorizations" as well as contracts with non-VA facilities.  See 38 C.F.R. § 17.52(a).  In this case there was no actual contract with the private facility in which the Veteran received treatment on November 21, 2011.  The Board is required to determine whether there was individual authorization for the Veteran's treatment. 

When VA facilities or other government facilities are not capable of furnishing economical hospital care or medical services because of geographic inaccessibility or are not capable of furnishing care or services required, VA may provide individual authorization or contract with non-VA facilities for care.  38 U.S.C.A. § 1703(a) (West 2002); 38 C.F.R. §§ 17.52(a), 17.54 (2012); see also Malone v. Gober, 10 Vet. App. 539, 541 (1997). 

However, hospital care or medical services in public or private facilities will be authorized, for the treatment of "medical emergencies" which pose a serious threat to the life or health of a veteran receiving hospital care or medical services in a facility over which the Secretary has direct jurisdiction or government facility with which the Secretary contracts, and for which the facility is not staffed or equipped to perform, and transfer to a public or private hospital which has the necessary staff or equipment is the only feasible means of providing the necessary treatment, 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.A. 1703(a)(3); 38 C.F.R. § 17.52(a)(3).  There is no requirement for treatment of a "service-connected disability" under this provision. 

When VA facilities or other government facilities are not capable of furnishing economical hospital care or medical services because of geographic inaccessibility, or are not capable of furnishing care or services required, VA may contract with non-VA facilities for care in accordance with the provisions of this section. When demand is only for infrequent use, individual authorizations may be used. Care in public or private facilities will only be authorized, whether under a contract or an individual authorization, for medical services for the treatment of any disability of a veteran who has a service-connected disability rated at 50 percent or more.  See 38 U.S.C.A. § 1703; 38 C.F.R. § 17.52(a)(2) . 

The admission of any patient to a private or public hospital at VA expense will only be authorized if a VA medical center or other federal facility to which the patient would otherwise be eligible for admission is not feasibly available.  38 C.F.R.  § 17.53. 

A VA facility may be considered as not feasibly available when the urgency of the applicant's medical condition, the relative distance of the travel involved, or the nature of the treatment required makes it necessary or economically advisable to use public or private facilities.  Id.  When non-VA care is authorized in such circumstances, the authorization will be continued after admission only for the period of time required to stabilize or improve the patient's condition to the extent that further care is no longer required to satisfy the purpose for which it was initiated.  Id.  

The issue of whether VA gave prior authorization for non-VA medical care received at a private facility is a factual, and not medical, determination.  Similes v. Brown, 6 Vet. App. 555, 557 (1994). 

VA's General Counsel, in a non-precedential response to the question regarding "[w]ho has the authority to approve or authorize a request for private hospitalization at VA expense under 38 U.S.C.A. § 1703(a), and what type of action(s) is necessary to constitute prior authorization under 38 C.F.R. § [17.54]" has indicated that the requirements for obtaining prior authorization for private medical expenses are quite specific.  In addition to meeting statutory requirements for reimbursement, any verbal authorizations must be confirmed in writing.  See VAOGCCONCLOP 1-95, 8, 9. 

If the issue of prior authorization is resolved in the appellant's favor under 38 U.S.C.A. § 1703(a)(1), it is not necessary to consider the claim under the provisions of 38 U.S.C.A. §§ 1725 and 1728, pertaining to reimbursement of unauthorized medical expenses. 

In this case, the Veteran is service connected for bilateral hearing loss, and the treatment received on November 21, 2011, was for a hearing aid evaluation.  Simply put, the treatment was for a service-connected disability.

The Veteran maintains that he was sent to a non-VA private provider by VA, with a fee basis letter in hand, within the effective period for the fee basis for the treatment received.  In support of his claim, he submitted a copy of an undated letter from the Health Benefits Supervisor stating that he had been approved for medical services indicated on the enclosed fee basis authorization to be paid at VA expense; and to contact a licensed provider in the local community and present them with the authorization that is enclosed.  The Board notes that the cover letter is not specifically addressed to this Veteran, but to a generic "Veteran" with no home address.  However, additional documentation does specifically identify this Veteran and includes his home address.  Further, this additional documentation states that the authorization is for hearing aid evaluation, impressions, and audiogram to be performed by a Stated Licensed audiologist.  It was also noted that the period of validity was from March 17, 2011, to December 29, 2011.  Moreover, it was stated that if the Veteran required additional appointments or tests above this approval, the provider must submit a prior-authorization request for review and determination prior to services being rendered.

A review of the documentation from the private medical provider reflects that the November 21, 2011, treatment was for a hearing aid evaluation as indicated by the aforementioned letter.  Such treatment was within the specified period of validity.  Further, nothing in the record indicates the VAMC has disputed the authenticity of this purported fee basis authorization letter, or that the treatment received was not from a State Licensed audiologist.  

In view of the foregoing, the Board finds that the record indicates the Veteran received individual authorization from VA for a hearing aid evaluation at a non-VA facility pursuant to the terms specified in the fee basis authorization letter submitted by the Veteran.  The Board notes that the terms of this authorization indicate it was for services related to a hearing aid evaluation, and that the authorization was apparently for only one such evaluation.  Here, the November 21, 2011, treatment does appear to be for the type of treatment specified in the fee basis authorization letter.  Granted, the November 21, 2011, treatment was approximately 8 months after the beginning of the validity period, although the supporting documents indicate it was issued in September 2011.  Although it is unclear why the Veteran apparently waited so long to obtain this treatment, nothing in the documents assembled for the Board's review indicates he received such treatment prior to November 21, 2011.  Further, the treatment received was before the expiration of the validity period.  Therefore, the treatment received on November 21, 2011, does appear to be in accord with the terms of that individual authorization.  

In view of the foregoing, and resolving all reasonable doubt in favor of the Veteran, the Board finds that there was prior VA authorization for payment or reimbursement of private medical expenses incurred in conjunction with treatment provided on November 21, 2011.  38 U.S.C.A. §§ 1703, 5107; 38 C.F.R. §§ 3.102, 17.52(a)(1), 17.53, 17.54. 

The Court has pointed out that even though § 1703 does not provide for payment or reimbursement directly to a veteran, "individual authorization" is premised upon a theory that a veteran is a third-party beneficiary to a § 1703 contract.  Zimick v. West, 11 Vet. App. 49, 51 (1998).  In Cantu v. Principi, 18 Vet. App. 92 (2004), the Court implicitly accepted the Veteran's right to make the claim based on pre-authorization and directed VA to make arrangement for payment of the medical expenses in accordance with applicable laws and regulations.  As such, the Veteran's claim for payment or reimbursement is granted. 


ORDER

Entitlement to payment or reimbursement of outpatient medical services received at a private facility on November 21, 2011, is granted.



____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs