Citation Nr: 18141515 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 15-42 697A DATE: October 10, 2018 ORDER Payment or reimbursement of medical services incurred at Pueblo Radiological Group (PRG), St. Mary Corwin Ortho (SMCO), and Centura Centers for Rehab (CCR) from June 1, 2012, to November 26, 2012, is denied. FINDING OF FACT The Veteran’s non-emergent medical services incurred at PRG, SMCO, and CCR from June 1, 2012, to November 26, 2012, were not authorized by the Department of Veterans Affairs (VA). CONCLUSION OF LAW The criteria for payment or reimbursement of medical services incurred at PRG, SMCO, and CCR from June 1, 2012, to November 26, 2012, have not been met. 38 U.S.C. §§ 1703, 5107; 38 C.F.R. §§ 17.52-54. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1966 to December 1969. This appeal is before the Board of Veterans’ Appeals (Board) from decisions between July 2012 and January 2013 of a VA Medical Center (VAMC). Pursuant to 38 U.S.C. § 1703, 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 the relevant regulations. When demand is only for infrequent use, individual authorizations may be used. 38 U.S.C. § 1703; 38 C.F.R. § 17.52(a)(3). 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. 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. In those instances where care in public or private hospitals at VA expense is authorized because a VA or other Federal facility was not feasibly available, as defined in this section, 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. 38 C.F.R. § 17.53. In general, if VA is to provide payment or reimbursement of medical expenses incurred in connection with a Veteran’s care at a non-VA hospital, the care must be authorized in advance. See 38 U.S.C. § 1703; 38 C.F.R. § 17.54. In the case of an emergency that existed at the time of admission, an authorization may be deemed a prior authorization if an application is made to VA within 72 hours after the hour of admission. 38 C.F.R. § 17.54. Whether treatment was authorized is a factual, not a medical, determination. Similes v. Brown, 5 Vet. App. 555 (1994). In the absence of prior appropriate authorization under 38 C.F.R. §§ 17.53 and 17.54, in order to be entitled to payment or reimbursement of unauthorized medical expenses incurred at a non-VA facility, certain conditions—including that the treatment was for a medical emergency—must be shown. See 38 U.S.C. §§ 1725, 1728. However, in this case, the record does not show—and the Veteran has not asserted—that any of the instances of medical treatment at issue were for any medical emergency. In this case, the record reflects that on May 20, 2012, the Veteran fell and broke his wrist. He contacted his VA physician regarding the injury, and the physician told him to go to the nearest emergency department for evaluation and treatment. On May 21, he underwent surgery for his injury. Subsequently, from June 1 to November 26, 2012, the Veteran was given X-ray testing at PRG in connection with his injury. Also, in connection with his injury, he had office visits at SMCO from June 22 to November 26, and non-VA physical therapy visits from August 30 to September 25, 2012, at CCR. As reflected in the agency of original jurisdiction’s September 2015 statement of the case, the Veteran’s claim for payment or reimbursement for this treatment was denied on the basis that it was not emergent and could have been performed at a VA facility, and that it was not authorized by VA prior to such treatment, as required by law. As reflected in his August 2016 testimony before the Board, the Veteran asserts that when VA informed him that he would be reimbursed for his initial May 2012 hospital care, he believed he was receiving approval for all procedures related to his initial wrist injury. He testified that he spoke to his VA physician about his surgery, who told him to continue therapy and X-rays at the private hospitals because they knew more about the Veteran’s case, and that the Veteran did not know he needed any further VA authorization for payment of his continued care. He stated that he had contacted his VA physician regarding his referral for private treatment, and his physician provided him with a copy of a letter he had written regarding his advice to seek care at a private hospital. The Veteran further stated that he assumed that if he was reimbursed for his wrist surgery, he would be reimbursed for all treatment relating to such wrist injury and surgery, and that he did not think that he should be responsible for paying for X-rays and therapy related to his injury because of his ignorance of VA regulations. The Veteran’s claim must be denied in this case. Initially, while the Veteran testified that his VA doctor advised him to continue private treatment including X-rays and physical therapy following his emergency and surgery, the United States Court of Appeals for Veterans Claims has noted that the advice of a doctor to go to a non-VA hospital is not the specific type of authorization contemplated in 38 C.F.R. § 17.54. See Smith v. Derwinski, 2 Vet. App. 378, 378-79 (1992), citing 38 C.F.R. § 17.50d (1991), which has since been recodified as 38 C.F.R. § 17.54 (see Medical; Nonsubstantive Miscellaneous Changes, 61 Fed. Reg. 21,964, 21,965 (May 13, 1996); see also Malone v. Gober, 10 Vet. App. 539, 544 (1997). Furthermore, the only documentation from the Veteran’s VA physician regarding private treatment for the Veteran’s wrist condition is a July 2012 letter. The letter states that the Veteran had a fall on May 20, 2012, with a probable fracture of his wrist, and that he called the VA physician directly, and by the description was advised to go to the nearest Emergency Department for evaluation and treatment as, at the time, the physician had no idea how serious it was and whether or not he had nerve or vascular injury. The letter does not refer to any of the Veteran’s subsequent, non-emergency, non-VA treatment from June 1 to November 26, 2012. While the Board acknowledges the Veteran’s assertion that, as he read the letter, it indicated that he had been authorized to pursue any private treatment—emergency or follow-up—related to his wrist injury. However, a plain reading of the letter suggests otherwise, and the Veteran’s representative acknowledged as much during the August 2016 hearing. Moreover, the record reflects that, beginning in July 2012, the Veteran and his private providers began receiving numerous letters from VA indicating that his claims of payment or reimbursement for medical services at PRG, SMCO, and CCR were being denied by VA on the basis that pre-authorization had not been obtained for such services provided; a copy of one such letter to the Veteran, dated August 23, 2012, is of record. The fact that the Veteran was receiving such letters, but continued with such private treatment until November 26, 2012, suggests that he continued with his private treatment even long after he was aware that VA did not consider such care to be pre-authorized and did not intend to pay or reimburse his expenses for such treatment. The Board acknowledges the Veteran’s assertions in this case, but is bound by statutory and regulatory authority. Given the above, the weight of the evidence is against a finding that the Veteran’s medical services incurred at PRG, SMCO, and CCR from June 1, 2012, to November 26, 2012, were authorized by VA as required by law, or may be payed or reimbursed by VA for any other reason under the law. Accordingly, such claim for payment or reimbursement must be denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Andrew Mack, Counsel