Citation Nr: 18152533 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 14-31 177A DATE: November 23, 2018 ORDER Payment or reimbursement for medical expenses incurred at Shands Movement Disorder Clinic on December 13, 2013, is denied. FINDING OF FACT Although the Veteran attended his scheduled appointment for Botox treatment of his service-connected disability of the left side of his face and neck on December 13, 2013 at the private facility, the Veteran did not have prior authorization from VA for treatment on that date. CONCLUSION OF LAW The criteria for payment or reimbursement for medical expenses incurred at Shands Movement Disorder Clinic on December 13, 2013, are not met. 38 U.S.C. §§ 1703, 1728, 5107; 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from August 1978 to April 1980, and from April 1981 to July 1983; service-connection has already been established for residuals of left temporal facial fracture with left facial weakness and chronic marked spasticity of the left side of his face and neck. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision by a Department of Veterans Affairs (VA) Medical Center. It is noted that the Veteran initially requested a Board hearing before a Veterans Law Judge in his September 2014 substantive appeal, VA Form 9; the Board scheduled him for a hearing in September 2018 and the Veteran was informed of that hearing in an August 2018 letter. The Veteran did not report for his scheduled Board hearing, and as of this decision, he has not requested to reschedule that hearing nor has he provided good cause for failing to report to his September 2018 scheduled hearing. Accordingly, the Board deems the Veteran’s request for a Board hearing to be withdrawn at this time and will proceed with adjudication of the claim at this time. See 38 C.F.R. § 20.1304. By way of background, it appears that the Veteran is treated for his service-connected disability of the left side of face and neck through VA; however, his treating VA physician has routinely referred him to the private medical facility in this case for Botox injection treatment every three months. The evidence of record demonstrates that the Veteran was authorized for a single visit to the private facility for Botox injection treatment from May 6, 2013 through November 30, 2013, and for a single visit to the private facility for Botox injection treatment from January 17, 2014 through April 17, 2014. The Veteran was seen for Botox injection treatment on December 13, 2013, which is not during either of the periods for which he was given authorization for treatment by the private facility. On appeal, in his August 2014 notice of disagreement, the Veteran asserts that he has received treatment for his service-connected disability from the private facility for numerous years, all at VA expense and that he has never received a bill for the scheduled procedure. He additionally pointed out that VA has covered the same treatments on other dates and that he was referred for these treatments by his VA treating physician. The Veteran reiterated in his September 2014 substantive appeal, VA Form 9, that he was referred by his VA treating physician for the treatment at issue in this case and that he has been getting these treatments at VA expense for over 10 years. He indicated that he received his appointment notice from the private facility to go in for his treatment in December 2013, and that he went to his appointment as scheduled. He indicated that VA has denied payment in this case because his treatment was outside of his “period of validity”; he stated that he did “not have access to this ‘period of validity,’” and that he went to his appointment as scheduled. He felt that this was not his fault, that he did not miss his appointment, he did not do the appointment scheduling, and that he “just did what [he] was supposed to do and that [was] to get treatment for [his] Service Connected conditions.” 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 authorize or contract with non-VA facilities for care. 38 U.S.C. § 1703(a); 38 C.F.R. § 17.52(a). Further, 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). While the Board is sympathetic to the situation and circumstances in this case, the Board must find that there is no prior authorization for the scheduled Botox injection treatment at the private facility on December 13, 2013, at issue in this case. The Board does reflect that the Veteran has routinely had prior authorization for this treatment both prior to and subsequent to the date of treatment at issue in this case. However, any past or subsequent authorizations for treatment are not binding in this case. See 38 U.S.C. 7104(c); 38 C.F.R. § 19.5. The law requires that the episode of care must be authorized in advance in order for payment or reimbursement to be awarded. See 38 U.S.C. § 1703; 38 C.F.R. § 17.54. In this case, the Veteran was very clearly authorized for any single episode of treatment that he received during either the period of May 6, 2013 through November 30, 2013, or the period of January 17, 2014 through April 17, 2014; his episode of treatment at issue in this case is very clearly outside of the authorization dates for treatment for Botox injection treatments at the private facility. As a final matter, although this episode of treatment was for a service-connected disability, this was a scheduled appointment and the Veteran has not, at any time, during the appeal, asserted that his life or health was at risk if he did not receive treatment for his service-connected disability on December 13, 2013. In short, as the Veteran has not asserted and there is no evidence of record that documents that the treatment on December 13, 2013 was for a medical emergency, the Board will not address any payment or reimbursement under 38 U.S.C. § 1728, in this case, as the Veteran and the facts of record have not raised entitlement under that statute during this appeal. (Continued on the next page)   Accordingly, as there was clearly no prior authorization from VA for his treatment at the private facility for December 13, 2013, the Board is not able award payment or reimbursement of the medical expenses associated with that episode of treatment in this case, and the claim must be denied at this time. See 38 U.S.C. § 1703; 38 C.F.R. §§ 17.52-17.54; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Peters, Counsel