Citation Nr: 18143905 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 15-44 402 DATE: October 22, 2018 ORDER Payment or reimbursement of medical expenses incurred at Oral & Maxillofacial Surgery Associates (OMSA) on October 1, 2013, is denied. FINDING OF FACT The Veteran’s non-emergent medical services incurred at OMSA on October 1, 2013, were not authorized by the Department of Veterans Affairs (VA). CONCLUSION OF LAW The criteria for payment or reimbursement of medical expenses incurred at OMSA on October 1, 2013, 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 January 1972 to September 1994. This appeal is before the Board of Veterans’ Appeals (Board) from a February 2014 decision of a VA Medical Center (VAMC). The Veteran seeks payment or reimbursement of expenses incurred at OMSA on October 1, 2013, for medical evaluation in connection with possible temporomandibular joint syndrome (TMJ). 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 facility, 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 the instance of medical treatment at issue was for any medical emergency. According to both VA records and the Veteran’s submitted statements, the Veteran was referred to a private oral surgeon for evaluation of possible TMJ in connection with reported headaches by a VA ear, nose, and throat clinic in 2013. However, VA informed the Veteran that it would neither provide evaluation and treatment of a dental condition, as he did not qualify for such (as reflected in a July 2013 letter to the Veteran); that VA would not pay for a private oral surgeon evaluation of possible TMJ, as the Veteran was not eligible for such treatment; and that he was encouraged to seek such private treatment using his own private health insurance (as reflected in September 2013 emails between the Veteran and a VA Patient Advocate). The Veteran nonetheless underwent private evaluation for possible TMJ at OMSA on October 1, 2013. As reflected in his December 2013, claim, February 2014 notice of disagreement, April 2014 statement, and October 2015 substantive appeal, the Veteran asserts that he is entitled to reimbursement for his medical expenses incurred at OSMA, as 1) VA incorrectly characterized his medical condition as a dental condition and denied provision of treatment for it on that basis; 2) VA advised the Veteran to seek a private provider for his TMJ evaluation and submit the evaluation findings back to VA, which he did; and 3) contrary to VA’s determination, the Veteran was actually entitled to outpatient dental services pursuant to the provisions of 38 U.S.C. § 1712(a)(1)(H) and 38 C.F.R. § 17.161(j). The Board notes the provisions of 38 U.S.C. § 1712 and 38 C.F.R. §§ 17.160-66 regarding outpatient dental services and treatment for certain eligible Veterans. See 38 U.S.C. § 1712(a). However, such provisions are subject to the provisions of 38 U.S.C. § 1703, and its implementing regulations, regarding the furnishing of health care at non-VA facilities at VA’s expense. See 38 U.S.C. § 1712(a)(3), (4); see also 38 U.S.C. § 1703(b). In this case, regardless of any eligibility the Veteran might have had for receiving dental care from VA as he has asserted, his claim must be denied because his non-emergent, non-VA care was not authorized in accordance with 38 U.S.C. § 1703. Initially, while the Veteran asserts that his VA doctor advised him to seek private evaluation of his TMJ, 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). Moreover, prior to the Veteran’s October 1, 2013, evaluation at OMSA, VA clearly informed him that it would not pay for the expenses of such evaluation, which the Veteran has expressly acknowledged; the Veteran has furthermore acknowledged that, while he was advised by his VA provider to seek private evaluation for TMJ, he was advised that he should do so at his own expense. In short, the record provides no basis for any finding that the Veteran’s non-emergent treatment at OMSA on October 1, 2013, had been authorized by VA in accordance with 38 U.S.C. § 1703.   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 expenses incurred at OMSA on October 1, 2013, 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