Citation Nr: 1416488 Decision Date: 04/14/14 Archive Date: 04/24/14 DOCKET NO. 12-05 672 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Togus, Maine THE ISSUE Entitlement to reimbursement of dental expenses incurred on August 30, 2011 and September 16, 2011. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Hoopengardner, Associate Counsel INTRODUCTION The Veteran had active duty service from July 1965 to July 1968 and May 1969 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 29, 2011 determination of the Department of Veterans Affairs (VA) Fee Services in Augusta, Maine that disapproved payment of unauthorized medical services incurred on August 30, 2011. A subsequent December 2011 Statement of the Case (SOC) from the VA Medical Center (VAMC) in Togus, Maine, in addition to denying payment for dental expenses incurred on August 30, 2011, also denied payment for dental expenses incurred on September 16, 2011, and as such, entitlement to reimbursement of dental expenses for both dates is before the Board. A review of the electronic records maintained in Virtual VA and Veterans Benefits Management System (VBMS) was conducted. FINDINGS OF FACT 1. The Veteran received dental care on August 30, 2011 and September 16, 2011 from provider H.F.D. resulting in unpaid dental expenses of $240.00 and $400.00. 2. At the time of receiving dental care, the Veteran had service-connected disabilities rated as total and was thus eligible for outpatient dental services and treatment. CONCLUSION OF LAW Entitlement to reimbursement for dental expenses incurred on August 30, 2011 and September 16, 2011 is warranted. 38 U.S.C.A. §§ 1712, 5107 (West 2012); 38 C.F.R. § 3.102 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Considering the favorable outcome detailed below as to the grant of this claim, VA's fulfillment of its duties to notify and assist need not be addressed at this time. The Veteran seeks reimbursement for dental expenses incurred on August 30, 2011 and September 16, 2011 from provider H.F.D. A November 2003 (mailed December 2003) rating decision granted the Veteran service-connection for multiple disabilities, including post-traumatic stress disorder (PTSD). The Veteran's PTSD was assigned a 100 percent disability rating, with an overall rating of 100 percent effective for the Veteran from August 2003. 38 U.S.C.A §1712(a)(1) (West 2012) provides that "[o]utpatient dental services and treatment, and related dental appliances, shall be furnished under this section only for a dental condition or disability-" and goes on to list various circumstances where dental services and treatment shall be provided, including "from which a veteran who has a service-connected disability rated as total is suffering". 38 U.S.C.A §1712(a)(1)(G) (West 2012). As discussed above, from August 2003, the Veteran has had service-connected disabilities rated as total and thus is eligible for outpatient dental services and treatment under 38 U.S.C.A §1712 (West 2012). The Veteran stated that VA assigned him to the private dental provider H.F.D. "several years ago." October 2011 Notice of Disagreement. The Veteran stated that the grinding of teeth is related to his service-connected PTSD and that "a breakdown in previous fillings due to grinding brought about a painful reaction when eating and drinking anything." Id. The Veteran further stated that "[t]he current dentist decided that those fillings had to be corrected to reduce the pain". Id. A Dental Claim Form shows that the Veteran received dental treatment on August 30, 2011, with a total fee listed of $245. Another Dental Claim Form shows that the Veteran received Dental treatment on September 16, 2011, with a total fee listed of $400. Both Dental Claim Forms list H.F.D. under the "billing dentist or dental entity" section and the Togus VAMC under the "insurance company/dental benefit plan information" section. The Dental Claim Form listing the August 30, 2011 treatment also included a note under the "Remarks" section that states "9/18/11 - if not pre-authorized, no mechanism for payment. Paul S. Zimmerman DDS". The Dental Claim Form listing the September 16, 2011 treatment also included a note under the "Remarks" section that states "10/16/11 - if not pre-authorized - no mechanism for payment. Paul S. Zimmerman DDS". A September 29, 2011 document from VA Fee Services in Augusta, Maine lists the August 30, 2011 dental treatment with H.F.D. and disapproved the claim for payment of unauthorized medical services. Under a section titled "reason(s) for not approving claim", the document lists "no evidence of prior authorization for the date(s) of service" and "Dr. Zimmerman denied services on 8/30/11 for $245. Was not pre-authorized. SMM". The December 2011 SOC, issued by the Togus VAMC, stated "[n]on-VA dental services provided to [the Veteran] on August 30 & September 16, 2011 are denied" and again referenced a lack of pre-authorization for the services in question. In the Veteran's October 2011 NOD, the Veteran stated that H.F.D. told him "they never had to require pre-authorization from the VA for work under $300 in the past and did not see why this situation would be any different, which is why the procedures were performed." In the Veteran's February 2012 Form 9, he stated that H.F.D. informed him that "such work under a certain amount did not require prior approval" and that H.F.D. has "several Veterans in the same category as me and have never run into this problem before". In the Veteran's April 2012 Appellant's Brief, the Veteran's representative argued that previously the Veteran had been allowed "to be seen in an as needed manner, leaving the question of billing and payment between the VAMC and [H.F.D.]". The Appellant's Brief went on to argue that "[t]he appellant asserts that any change in the method of operation should have involved written notification to him and to the dentist, to ensure all parties were aware of the changes in the way the VAMC Dental Service would be viewing the billing procedures. In essence, the Veteran argues that the sudden change in procedure left him stuck in the middle, with VA refusing payment and the dentist demanding payment." The Board notes that 38 U.S.C.A §1712(a)(3) (West 2012) provides that "[t]he total amount which the Secretary may expend for furnishing, during any twelve-month period, outpatient dental services, treatment, or related dental appliances to a veteran under this section through private facilities for which the Secretary has contracted...may not exceed $1,000 unless the Secretary determines, prior to the furnishing of such services, treatment, or appliances and based on an examination of the veteran by a dentist employed by the Department (or, in an area where no such dentist is available, by a dentist conducting such examination under a contract or fee arrangement), that the furnishing of such services, treatment, or appliances at such cost is reasonably necessary." 38 U.S.C.A §1712(a)(3) (West 2012) thus requires prior authorization for outpatient dental services if they will exceed $1,000 in a twelve-month period. Of record is a VA Request for Outpatient Services document that appears to list all of the Veteran's outpatient treatment with H.F.D. dating back to 2004. In the twelve-month period preceding the August 30, 2011 and September 16, 2011 treatment in question, treatment is listed on three dates (August 2011, April 2011, December 2011), but while dollar amounts are listed for some other treatments, dollar amounts are not listed for the treatments in the preceding twelve-month period. As noted above, the Veteran's August 30, 2011 treatment was billed $245 and the Veteran's September 16, 2011 treatment was billed $400.00, for a total amount of $645.00 for the dental services in question. As the evidence does not show that the treatment in the preceding twelve-month period, combined with the August 30, 2011 and September 16, 2011 treatment, exceeded $1,000, and resolving reasonable doubt in favor of the Veteran, the Board cannot conclude that prior authorization was required for the dental services in question under 38 U.S.C.A §1712(a)(3) (West 2012). In addition, as the Veteran's credible statements indicate that the Veteran did not seek prior authorization for prior dental services, and again resolving reasonable doubt in favor of the Veteran, the Board finds that it is at least in equipoise whether tacit prior authorization existed for the dental services in question. Based on a review of the evidence, the Board has no recourse but to find that it is at least in equipoise that either tacit prior authorization was provided or prior authorization was not required for the dental services in question. As such, and resolving reasonable doubt in favor of the Veteran, entitlement to reimbursement for dental expenses incurred on August 30, 2011 and September 16, 2011 is warranted. 38 U.S.C.A. §§ 1712, 5107 (West 2012); 38 C.F.R. § 3.102 (2013). ORDER Entitlement to reimbursement for dental expenses incurred on August 30, 2011 and September 16, 2011 is granted. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs