Citation Nr: 19150892 Decision Date: 07/01/19 Archive Date: 07/01/19 DOCKET NO. 15-07 965 DATE: July 1, 2019 ORDER Payment or reimbursement of medical expenses incurred on August 19, 2014, at Jacksonville Center for Endoscopy (JCE) is denied. FINDING OF FACT The Veteran’s nonemergent medical services incurred at JCE on August 19, 2014, were not authorized by the Department of Veterans Affairs (VA). CONCLUSION OF LAW The criteria for payment or reimbursement of medical expenses incurred on August 19, 2014, at JCE have not been met. 38 U.S.C. §§ 1703, 5107; 38 C.F.R. §§ 17.52, 17.4010, 17.4020. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1966 to October 1968. This appeal is before the Board of Veterans’ Appeals (Board) from a September 2014 decision of the VA Veterans Health Administration (VHA). In November 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript is included in the claims file. The Veteran seeks payment or reimbursement of medical expenses incurred on August 19, 2014, at JCE. 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); see also 38 C.F.R. § 17.4010. 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, 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 medical expenses at issue were for any medical emergency. The Veteran underwent colonoscopy at JCE on August 19, 2014. As reflected its September 2014 decision and January 2015 statement of the case, the agency of original jurisdiction denied payment or reimbursement under 38 U.S.C. § 1703 on the basis that VA did not authorize the nonemergent, non-VA treatment at JCE, as required under VA regulations. As reflected in his September 2014 notice of disagreement, January 2015 substantive appeal, and November 2018 testimony before the Board, the Veteran asserts that he was given “authorization” for the non-VA colonoscopy by his VA primary care doctor, who told him that Medicare would pay for 80 percent of the expenses of such procedure and VA would pay the remaining 20 percent. During his Board hearing, the Veteran contended that he was referred to JCE by his VA doctor and received verbal consent to schedule the non-VA colonoscopy. A July 2, 2014, VA treatment note from the Veteran’s primary care doctor, under the heading “PREVENTIVE CARE,” indicates that the Veteran had a colonoscopy in 2008, with 5 polyps, and states: “VET WILL [FOLLOW UP] WITH OUTSIDE [DOCTOR] TO SCHEDULE.” No further VA treatment records prior to the August 19, 2014, colonoscopy discuss the procedure. For the following reasons, the Veteran’s claim must be denied. Even assuming the Veteran’s VA doctor had advised him to get a colonoscopy from a non-VA provider, including JCE, the United States Court of Appeals for Veterans Claims (Court) has held that advice or direction from a VA doctor to a patient to go to a non-VA provider does not constitute authorization of non-VA care at VA expense under VA regulations. See Smith v. Derwinski, 2 Vet. App. 378, 378-79 (1992), citing 38 C.F.R. § 17.50d (1991), which was 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). The Board notes that, effective June 5, 2019, 38 C.F.R. § 17.54—cited by the Court in Smith (as 38 C.F.R. § 17.50d (1991)) and Malone as providing that nonemergent, non-VA treatment must be authorized in advance—was removed and reserved by VA. See Veterans Community Care Program, 84 Fed. Reg. 26278, 26306 (June 5, 2019). However, the new provisions established in in that rule governing authorized non-VA care—codified at 38 C.F.R. § 17.4020—continue to provide that nonemergent, non-VA care must be authorized in advance of such treatment: (a) Electing non-VA care. Except as provided for in paragraph (d) of this section [regarding organ and bone marrow transplant care], a covered veteran eligible for the Veterans Community Care Program under § 17.4010 [establishing eligibility under 38 U.S.C. § 1703] may choose to schedule an appointment with a VA health care provider, or have VA authorize the veteran to receive an episode of care for hospital care, medical services, or extended care services from an eligible entity or provider when VA determines such care or services are clinically necessary. 38 C.F.R. § 17.4020 (emphasis added). In this regard, 38 C.F.R. § 17.4020 specifically carves out an exception to the preauthorization rule that applies only to emergency treatment. See 38 C.F.R. § 17.4020(c)(1) (establishing that “VA may authorize emergency treatment after it has been furnished to a covered veteran” under certain circumstances). Therefore, the Board finds that the rule and reasoning established and articulated by the Court in Smith and Malone continues to apply to cases of nonemergent, non-VA medical treatment governed by 38 U.S.C. § 1703. As such, the Board finds that the advice or direction of the Veteran’s VA doctor to get a colonoscopy from a non-VA provider would not constitute authorization for payment of expenses of non-VA treatment. Moreover, even assuming that the Veteran’s VA doctor had told him that VA would pay any expenses for a non-VA colonoscopy not paid for by Medicare, this would not provide an exception to VA regulations. See McTighe v. Brown, 7 Vet. App. 29, 30 (1994) (citing OPM v. Richmond, 496 U.S. 414 (1990)) (noting that “erroneous advice given by a government employee cannot be used to estop the government from denying benefits”). Therefore, although the Board is sympathetic to the circumstances surrounding the Veteran’s claim, it is confined to applying the laws and regulations applicable to such medical reimbursement claims; in this case, a preponderance of the evidence is against a finding that payment for the expenses of the Veteran’s nonemergent treatment on August 19, 2014, at JCE were authorized by VA. Accordingly, payment or reimbursement of medical expenses incurred on August 19, 2014, at JCE must be denied. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). MICHAEL A PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Andrew Mack, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.