Citation Nr: 18153735 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 16-18 980A DATE: November 29, 2018 ORDER Entitlement to payment or reimbursement of the cost of medical services received at Gunderson Lutheran Medical Center (GLMC) in La Crosse, Wisconsin on July 15, 2015 is denied. FINDING OF FACT The care the Veteran received at GLMC was not pre-authorized by VA and was not for a medical emergency. CONCLUSION OF LAW The criteria for payment or reimbursement for the cost of the medical services received at GLMC on July 15, 2015 are not met. 38 U.S.C. §§ 1703, 1725; 38 C.F.R. §§ 17.52, 17.1002. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1988 to December 1991. This matter is on appeal before the Board of Veterans Appeals (Board) from a September 2015 decision of the Department of Veterans Affairs Medical Center (VAMC) in Tomah, Wisconsin. Entitlement to payment or reimbursement of the cost of medical services received at GLMC in La Crosse, Wisconsin on July 15, 2015. The Veteran seeks VA payment or reimbursement of the cost of an endoscopy with banding of the esophagus performed at GLMC on July 15, 2015. 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, in certain specific circumstances, authorize or contract with non-VA facilities for care. When demand is only for infrequent use, individual authorizations may be used. 38 U.S.C. § 1703(a); 38 C.F.R. § 17.52(a). However, non-emergent care by a private facility must generally be preapproved by VA either through the individual authorization or via contract. Id.; see also 38 C.F.R. § 17.54. In his October 2015 notice of disagreement, the Veteran reported that on July 2, 2015, he went to a local medical clinic because he was vomiting blood and had blood in his stool. Due to the severity of his condition, he was sent to GLMC for emergency care. At GLMC, surgery was performed to repair upper gastrointestinal bleeding. The Veteran was then placed in the ICU and subsequently discharged home on July 3, 2015. Upon his discharge, he was instructed to return to GLMC for follow-up on July 15, 2015. At the July 15, 2015 visit, the surgeon performed the endoscopy to check on the status of the surgical repair and re-banded the esophagus. The Veteran emphasized that during the time between July 4, 2015 and July 15, 2015, he was focused on his recovery and following his surgeon’s instructions. Consequently, he did not contact VA to attempt to obtain authorization for payment for the July 2015 follow-up procedure. Private medical records associated with the claims file confirm that the Veteran underwent the reported follow-up endoscopic procedure at GLMC on July 15, 2015. The above summarized evidence clearly shows that VA did not pre-approve payment or reimbursement of the cost of the July 2015 GLMC treatment. In this regard, the Veteran affirmatively acknowledged that he did not seek such pre-authorization and there is no other information in the record to suggest that any VA official provided such pre-authorization. Consequently, the applicable regulations do not permit the Board to grant payment or reimbursement of this cost based on the care being pre-authorized by VA. 38 U.S.C. § 1703(a); 38 C.F.R. § 17.52(a), 17.54. Payment or reimbursement of private medical care that is not pre-authorized by VA can be granted in certain emergency situations. See 38 U.S.C. §§ 1725, 1728. As the Veteran’s esophageal condition is not a service-connected disability, a non-service connected disability that has been aggravating a service-connected disability or a disability that is associated with participation in a Vocational Rehabilitation program, and as the Veteran does not have total and permanent service-connected disability, consideration for payment or reimbursement for the follow-up esophageal procedure may not be considered under 38 U.S.C. § 1728. See 38 C.F.R. § 17.120(a). The Board has considered the Veteran’s claim under 38 C.F.R. § 38 U.S.C. § 1725, which can allow for payment or reimbursement of private emergency treatment for a non-service connected disability in certain circumstances. Some of the necessary criteria for payment or reimbursement under this statute are that the Veteran received the care in question at a hospital emergency department or similar facility held out as providing emergency care to the public; that the treatment or evaluation received is for a condition of such a nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health; and that a VA or other federal facility was not feasibly available to provide the treatment. 38 C.F.R. § 17.1002; 38 C.F.R. § 17.1002(a-b). In this case, it is evident that the July 15, 2015 endoscopy was a scheduled follow-up procedure. There is no indication that the Veteran was suffering from acute symptoms on July 15th that would have led to the expectation that the procedure had to be performed that day for him to avoid hazard to life or health. Rather, the evidence indicates that the Veteran was simply continuing his recovery from the previous emergency surgery and that the July 15th procedure was non-emergent follow-up treatment. Accordingly, a prudent layperson would not have expected that delay in seeking immediate medical attention (e.g. on a day after July 15, 2015) would have been hazardous to the Veteran’s life or health. Similarly, there is no indication that the follow-up care could not have been performed by a VA facility. For example, the Tomah VAMC is approximately 64 miles from where the Veteran was living in Whitehall, Wisconsin in July 2015 whereas GLMC is only a little closer (i.e. approximately 55 miles away). There is no indication from the record that the Veteran could not have traveled the short additional distance to have the procedure performed at the VAMC and no indication that the VAMC would not have been able to provide the care. Consequently, a VA facility is reasonably shown to have been feasibly available to provide the care. Accordingly, as neither of these necessary criteria have been met, the Board does not have a basis for awarding payment or reimbursement for endoscopic procedure under 38 U.S.C. § 1725. 38 C.F.R. § 17.1002(b-c). (Continued on the next page)   The Board empathizes with the Veteran’s situation as it is apparent that he was committed to ensuring that he properly recovered from his emergency surgery during the time where he could have sought authorization from VA for payment for the GLMC follow-up care. However, the Board is bound to follow the controlling legal authority. This authority generally requires VA authorization for the non-VA treatment provided, which is not established in this case. Also, although a legal exception to this rule exists for certain medical emergencies, as explained above, the endoscopic procedure in this case does not qualify under this legal exception. Accordingly, the Board does not have the legal authority to grant the Veteran’s claim and it must be denied as a matter of law. 38 C.F.R. §§ 17.52, 17.1002(b-c). S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Dan Brook, Counsel