Citation Nr: 20006532 Decision Date: 01/27/20 Archive Date: 01/27/20 DOCKET NO. 19-36 004 DATE: January 27, 2020 ORDER Entitlement to payment or reimbursement of the medical expenses incurred during non-VA medical services (outpatient vascular surgeries with follow-up testing) provided at Bay Area Surgical Specialists [hereinafter “BASS”] on August 27, 2018, September 12, 2018, and September 28, 2018, on the basis of prior authorization under the provisions of 38 U.S.C. § 1703(a), is denied. Entitlement to payment or reimbursement of unauthorized medical expenses incurred during non-VA medical services (outpatient vascular surgeries with follow-up testing) provided at BASS on August 27, 2018, September 12, 2018, and September 28, 2018, is denied. FINDINGS OF FACT 1. The Veteran is not service-connected for any disability by VA. 2. VA did not provide prior authorization under a written contract or under individual authorizations for the Veteran’s private medical services (outpatient vascular surgeries with follow-up testing) at BASS on August 27, 2018, September 12, 2018, and September 28, 2018. 3. VA facilities were feasibly available to the Veteran and an attempt to use them beforehand would have been considered reasonable by a prudent layperson, during the Veteran’s private medical services (outpatient vascular surgeries with follow-up testing) at BASS on August 27, 2018, September 12, 2018, and September 28, 2018. 4. A “medical emergency” did not exist for the Veteran under the prudent layperson standard during his private medical services (outpatient vascular surgeries with follow-up testing) at BASS on August 27, 2018, September 12, 2018, and September 28, 2018. CONCLUSIONS OF LAW 1. The criteria are not met for prior authorization of payment or reimbursement of medical expenses incurred during non-VA medical services (outpatient vascular surgeries with follow-up testing) at BASS on August 27, 2018, September 12, 2018, and September 28, 2018. 38 U.S.C. §§ 1701, 1703, 5107 (2012); 38 C.F.R. §§ 3.102, 17.30, 17.52, 17.53, 17.54, 17.120, 17.130, 17.1002 (2019). 2. The criteria are not met for payment or reimbursement of unauthorized medical expenses incurred during non-VA medical services (outpatient vascular surgeries with follow-up testing) at BASS on August 27, 2018, September 12, 2018, and September 28, 2018. 38 U.S.C. §§ 1725, 5107 (2012); 38 C.F.R. §§ 17.53, 17.120, 17.130, 17.1002(a)-(c) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from January 1972 to June 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2018 and December 2018 decisions of the Department of Veterans Affairs (VA) Northern California Health Care System (HCS) in Vancouver, Washington. The appellant, BASS, is the entity that provided the medical treatment and services in question to the Veteran. 38 C.F.R. § 17.1004(a) (2019). BASS is the claimant for payment or reimbursement in the present case. This appeal was processed using a paper-based claims file only. There are no relevant electronic records. I. VA’s Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA’s duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2019). In Beverly v. Nicholson, 19 Vet. App. 394, 403-04 (2005), the U.S. Court of Appeals for Veterans Claims (Court) implied the VCAA is applicable to a Chapter 17 claim, but then held that the failure to comply with the VCAA notice requirements in that case constituted non-prejudicial error. But to the extent the VCAA is applicable to the instant medical expense reimbursement claims, the appellant has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Prior Authorization under 38 U.S.C. § 1703(a) From July 13th-25th of 2018, the Veteran was hospitalized at Alta Bates Summit Medical Center in Oakland, California. This is a private facility. The Veteran was 66 years old at the time. He was hospitalized due to a fall caused by left leg pain and numbness. He also had fallen on his left chest, developing significant left-sided chest pain. He was found to have several rib fractures. He was observed to be “profoundly anemic.” These symptoms had been present for one week prior to hospitalization. During his 12th day of admission at this private hospital, he was treated for left hemothorax, critical lower limb ischemia, multiple rib fractures, and acute blood loss with anemia, hyponatremia, peripheral arterial disease, and hypertension. Upon discharge from Summit Medical Center on July 25th, 2018, he was scheduled to visit a vascular surgeon. The cost of the above private hospitalization at Summit Medical Center from July 13th-25th of 2018 is not on appeal, as no claim for reimbursement was filed with VA from this particular private provider. On August 8, 2018, the Veteran was seen at BASS in Mare Island, California, for a vascular surgery consult. He continued to report left leg pain. The assessment was peripheral arterial disease (PAD) and left critical limb ischemia (CLI), status post left femoral endarterectomy (CFA). A plan was discussed for the Veteran to undergo a surgical procedure – a left lower extremity angiogram with intervention. This procedure was deemed to be of “medical necessity.” The cost of the above private vascular surgery consult at BASS on August 8, 2018, is not on appeal, as no claim for reimbursement was filed with VA for this particular date. On August 27, 2018, the Veteran was seen at BASS in Mare Island, California, for his prescheduled outpatient vascular surgery. It was noted that his symptoms had worsened since his previous treatment. Therefore, he underwent a left leg angiogram with intervention. The private vascular surgeon wrote that this surgery was a “[t]echnically challenging case required a prolonged operative time due to the patient’s body habitus, recent surgery, and significant diffuse atherosclerotic disease requiring advanced techniques to re-vascularized.” The pre-operative and post-operative diagnoses remained the same – status post left femoral endarterectomy (CFA) and peripheral arterial disease (PAD) with critical limb ischemia (CLI) of the left leg. The Veteran was discharged home on the same day – August 27, 2018. He also had an outpatient follow-up visit for a non-invasive extremity arterial study performed at BASS a few weeks later on September 12, 2018. Subsequently, two weeks later, he underwent a second outpatient surgery at BASS on September 28, 2018 – an endovascular revascularization procedure, according to the Current Procedural Terminology (CPT) Codes utilized for this visit in the December 2018 FPPS 837 Institutional EDI Data Displays. The Veteran is not service-connected for his peripheral arterial disease (PAD) with critical limb ischemia (CLI) of the left leg. Thus, there is no dispute that his private outpatient surgeries and visits on August 27, 2018, September 12, 2018, and September 28, 2018 at BASS were for a nonservice-connected disorder. At the time, the Veteran had limited health insurance coverage under Medicare Part A (inpatient hospitalizations). However, he did not have health insurance coverage under Medicare Part B (outpatient hospital services or outpatient care). The appellant (BASS) has submitted timely claims for payment or reimbursement on November 2018 and December 2018 FPPS 837 Institutional EDI Data Displays. The total outstanding amounts claimed are significant - $83,837, $63,624, $444, and $550. The appellant (BASS) has requested payment or reimbursement from VA of the medical expenses associated with the Veteran’s private outpatient vascular surgery on August 27, 2018, his private outpatient follow-up visit with testing on September 12, 2018, and his second outpatient vascular surgery on September 28, 2018. The appellant (BASS) advised that no prior authorization from VA was obtained for these three dates because BASS was unaware that the Veteran did not have Medicare Part B coverage when the private services were provided. In other words, BASS thought the private medical services were already covered by the Veteran’s health care insurance, such that prior authorization from VA was not secured beforehand. However, BASS asserts that the private treatment provided on these three dates meets the “emergent need category” due to “medical necessity following a hospital admission.” BASS adds that the private treatment was rendered “in good faith.” Thus, VA should allocate payment for the private medical services rendered by BASS. See December 2018 NODs; October 2019 VA Form 9. In the November 2018 and December 2018 initial decisions on appeal and in the August 2019 Statement of the Case (SOC), the Agency of Original Jurisdiction (AOJ) denied the appellant’s appeal for payment or reimbursement of the medical expenses incurred during non-VA medical services (outpatient vascular surgeries with follow-up testing) provided at BASS on August 27, 2018, September 12, 2018, and September 28, 2018, on the basis of a lack of prior authorization under the provisions of 38 U.S.C. § 1703(a). That is, the AOJ determined that VA did not provide any prior authorization for the Veteran under 38 U.S.C. § 1703(a) for either his August 27, 2018, September 12, 2018, or September 28, 2018 private vascular surgeries with follow-up testing. In other words, he sought private treatment of his own accord. There was no contract or individual authorization given by VA for this private treatment. In an August 2019 reconsideration decision, the AOJ also determined that VA facilities were “feasibly available” to the Veteran on August 27, 2018, September 12, 2018, and September 28, 2018. See 38 C.F.R. §§ 17.53, 17.1002(c). In other words, the nearby VA Medical Center (VAMC) in San Francisco, California could have performed the necessary vascular surgeries with follow-up testing, free of charge. In any event, the appellant (BASS) has appealed the AOJ’s denial to the Board. 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. 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); Malone v. Gober, 10 Vet. App. 539, 541 (1997). In adjudicating a claim for payment or reimbursement of medical expenses, the VA must make an initial factual determination as to whether VA actually gave the claimant prior authorization for non-VA medical care received at a private facility, if this issue is raised. 38 U.S.C. § 1703(a); 38 C.F.R. § 17.54. This is a factual, not a medical, determination. Similes v. Brown, 6 Vet. App. 555, 557 (1994). The admission of a veteran to a non-VA hospital at VA expense must be authorized in advance. In the case of an emergency that existed at the time of admission, an authorization may be deemed a prior authorization if an application, whether formal or informal, by telephone, telegraph, or other communication, made by the veteran or by others on his/her behalf is dispatched to VA for veterans in the 48 contiguous States and Puerto Rico, within 72 hours after the hour of admission, including in the computation of time Saturday, Sunday, and holidays. 38 C.F.R. § 17.54(a). In determining the claim at issue, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). There is one category for prior authorization under 38 U.S.C. § 1703(a) that is potentially applicable to the Veteran’s particular fact pattern in the present case: 38 U.S.C. § 1703(a)(2)(B) and 38 C.F.R. § 17.52(a)(2)(ii). That is, under 38 C.F.R. § 17.52(a)(2)(ii), care in public or private facilities, subject to the provisions of §§ 17.53, 17.54, 17.55 and 17.56, will be authorized, whether under a contract or an individual authorization, for “medical services” for the treatment of any disability of a veteran who has been furnished VA hospital care, VA nursing home care, VA domiciliary care, or VA medical services, and requires private medical services to complete treatment incident to such care or services. Each authorization for non-VA treatment needed to complete treatment may continue for up to 12 months, and new authorizations may be issued by VA as needed. See 38 U.S.C. § 1703(a)(2)(B); 38 C.F.R. § 17.52(a)(2)(ii). The Board will only address this one category, as it is the only provision in VA’s prior authorization statute that could apply here. Notably, under this category of prior authorization, there is no requirement for a “medical emergency” to meet the criteria for prior authorization, which is beneficial to the Veteran. Also, there is no requirement for the private treatment to be rendered for a service-connected disability. In other words, the Veteran’s nonservice-connected outpatient vascular surgeries with follow-up testing provided at BASS on August 27, 2018, September 12, 2018, and September 28, 2018, does not bar a finding of prior authorization under this provision. And finally, under this category, there is no requirement for an actual transfer from a VA facility to a private facility. See Zimick v. West, 11 Vet. App. 45, 52 (1998) (“In order to ‘transfer’ to a non-VA facility, a patient already would need to be in a VA facility.”) See also 38 U.S.C. § 1703(a)(3) and 38 C.F.R. § 17.52(a)(3) (pertaining to the actual transfer of a Veteran from a VA facility to a non-VA facility). Here, there was no transfer of the Veteran from a VA facility to a non-VA facility, as it appears the Veteran arrived by private vehicle to his outpatient vascular surgeries with follow-up testing provided at BASS on August 27, 2018, September 12, 2018, and September 28, 2018. He was not transferred by ambulance from any VA facility. But as stated above, the lack of a transfer from a VA facility to a private facility wound not serve as a bar to prior authorization under 38 U.S.C. § 1703(a)(2)(B) and 38 C.F.R. § 17.52(a)(2)(ii). For purposes of VA prior authorization above, the term “medical services” includes medical examination, treatment, rehabilitative services (i.e., outpatient care), and surgical services, among other items. 38 U.S.C. § 1701(6); 38 C.F.R. § 17.30(a). Therefore, it is a broad definition and would include the Veteran’s outpatient vascular surgeries with follow-up testing provided at BASS on August 27, 2018, September 12, 2018, and September 28, 2018. However, it is questionable whether the current Veteran required private medical services to complete treatment incident to earlier VA care or VA services. See 38 C.F.R. § 17.52(a)(2)(ii). It is unclear from the record whether VA provided actual treatment for his peripheral arterial disease (PAD) with critical limb ischemia (CLI) of the left leg (other than the documented phone conversations with VA nurses), or whether the Veteran required private medical services to complete treatment incident to earlier VA care or VA medical services. Id. Nonetheless, for purposes of this Board decision, the Board will assume the Veteran meets this criterion. It follows that the sole remaining questions in the present case for the prior authorization issue under 38 U.S.C. § 1703(a), are the following: (1) whether VA medical personnel provided prior written authorization under a contract or individual authorizations for the Veteran’s private medical services (outpatient vascular surgeries with follow-up testing) at BASS on August 27, 2018, September 12, 2018, and September 28, 2018, such that all costs incurred should be covered by VA. See 38 U.S.C. § 1703(a); 38 C.F.R. § 17.52(a); and (2) whether a VA or other Federal facility / provider was not feasibly available to the Veteran on the dates of August 27, 2018, September 12, 2018, and September 28, 2018, and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson. See 38 U.S.C. § 1703(a); 38 C.F.R. §§ 17.52(a), 17.53, 17.120(c), 17.1002(c). Simply stated, the Veteran would prevail here if it is established by a written contract or written individual authorization that the appropriate VA clinical personnel provided prior authorization for his private “medical services” (outpatient vascular surgeries with follow-up testing) at BASS on August 27, 2018, September 12, 2018, and September 28, 2018, and it is also established that a VA facility was not feasibly available to the Veteran on all three dates, under applicable VA law and regulations. Upon review of the evidence, the Board finds that VA did not provide prior authorization under a written contract or written individual authorization for the Veteran’s private “medical services” (outpatient vascular surgeries with follow-up testing) at BASS on August 27, 2018, September 12, 2018, and September 28, 2018. Thus, the cost of these three visits at the private facility should not be covered by VA. See 38 U.S.C. § 1703(a); 38 C.F.R. § 17.52(a). The prior authorization claim is denied. With regard to the first question on whether prior authorization was given, what constitutes a prior authorization by VA is not expressly defined; however, the oral advice of a doctor or a nurse to go to a non-VA hospital is not the specific type of authorization contemplated by 38 C.F.R. § 17.54. Smith v. Derwinski, 2 Vet. App. 378, 378-79 (1992); but see Cantu v. Principi, 18 Vet. App. 92 (2004) (holding that the requirements under 38 C.F.R. § 17.54 for authorization were met when a VA physician arranged a veteran’s transfer and transportation from VA outpatient clinic to private facility). In short, simple belief that the treatment was authorized, without any confirmation or action by VA, is not enough to show prior authorization. VA’s General Counsel, in response to the question regarding “[w]ho has the authority to approve or authorize a request for private hospitalization at VA expense under 38 U.S.C. § 1703(a), and what type of action(s) is necessary to constitute prior authorization under 38 C.F.R. § [17.54]” has indicated that the requirements for obtaining prior authorization for private medical expenses are quite specific. In addition to meeting statutory requirements for reimbursement, any verbal authorizations must be confirmed in writing. See VA O.G.C. Concl. Op. 1-95 at paragraphs 16-17 (emphasis added). On this first question, there is no probative evidence in the record that the Veteran received any prior authorization from any VA clinical personnel in writing for the specific dates in question. See again VAOGCCONCLOP 1-95 at paragraphs 16 and 17. That is, there is no proper, written confirmation of record for prior authorization for VA purposes for the Veteran’s outpatient vascular surgeries with follow-up testing at BASS on August 27, 2018, September 12, 2018, and September 28, 2018. In fact, the contemporaneous medical documentation from BASS does not mention VA providing any prior authorization under either a written contract or under written individual authorizations for these three visits. Most importantly, in the October 2019 VA Form 9, the appellant (BASS) explicitly stated that it did not obtain prior authorization for the Veteran’s vascular surgeries. The personnel at BASS were under the false impression that the Veteran had Medicare Part B coverage, when the private outpatient services were provided on August 27, 2018, September 12, 2018, and September 28, 2018. It follows that BASS incorrectly believed it would be reimbursed for the costs of the three private visits by the Veteran’s Medicare Part B health insurance coverage. Thus, the record is undisputed that VA provided no prior authorization for the Veteran’s outpatient vascular surgeries with follow-up testing at BASS on August 27, 2018, September 12, 2018, and September 28, 2018. The Board now turns to the second question of whether a VA or other Federal facility / provider was not feasibly available to the Veteran on August 27, 2018, September 12, 2018, and September 28, 2018, and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson. See 38 U.S.C. § 1703(a); 38 C.F.R. §§ 17.52(a), 17.53, 17.120(c), 17.1002(c). That is, under 38 U.S.C. § 1703(a), another prerequisite to permit prior authorization for private treatment is that the VA facility was not feasibly available at the time of the alleged prior authorization due to its lack of capability to furnish the treatment in question or its geographical inaccessibility. See 38 C.F.R. § 17.52(a). Specifically, 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. 38 C.F.R. § 17.53. In addition, in determining feasible availability of VA facilities, the Board must also consider whether an attempt to use them beforehand or obtain prior VA authorization for the services required would not have been reasonable, sound, wise, or practicable, or treatment had been or would have been refused. 38 C.F.R. § 17.120(c). For example, a VA facility would not be feasibly available and an attempt to use it beforehand would not have been considered reasonable by a prudent layperson if a veteran was brought to a private hospital in an ambulance and the ambulance personnel determined that the nearest available appropriate level of care was at a non-VA medical center. See 38 C.F.R. § 17.1002(c). Additionally, with regard to the issue of feasible availability, no reimbursement or payment of services will be made when such treatment was procured through private sources in preference to available Government facilities. 38 C.F.R. § 17.130. The existence of a VA facility does not in and of itself mean that the VA facility was feasibly available. Cotton v. Brown, 7 Vet. App. 325, 327 (1995). The fact that a VA medical center was located in the same city as the private facility does not provide an adequate basis for the Board’s findings that a VA facility was “available”; rather, the determination of whether a VA facility was “feasibly available” must be made after consideration of such factors as the urgent nature of the veteran’s medical condition and the length of any delay that would have been required to obtain treatment from a VA facility. Id. at 327-28. On the issue of prior authorization, under VA law and regulation, the Board finds that the nearest VA facility (the VAMC in San Francisco) was “feasibly available” to the Veteran on August 27, 2018, September 12, 2018, and September 28, 2018. 38 U.S.C. § 1703(a); 38 C.F.R. §§ 17.53, 17.120(c), 17.1002(c). In this regard, there is neither clinical evidence of record nor a lay allegation that the Veteran’s peripheral arterial disease (PAD) and left critical limb ischemia (CLI) was “urgent” on either August 27, 2018, or September 12, 2018, or September 28, 2018. See 38 C.F.R. § 17.53. In fact, earlier VA PACT telephone notes and VA addendum notes dated in July 2018 confirm that the Veteran was being treated and taking prescription medications for his heart, blood pressure, and cholesterol issues at that earlier time. He was previously hospitalized from July 13th-25th of 2018 at Summit Medical Center for left hemothorax, critical lower limb ischemia, multiple rib fractures, and acute blood loss with anemia, hyponatremia, peripheral arterial disease, and hypertension. Also, on August 8, 2018, several weeks before the first vascular surgery at issue, the Veteran was seen at BASS for a vascular surgery consult. He continued to report left leg pain. The assessment was peripheral arterial disease (PAD) and left critical limb ischemia (CLI), status post left femoral endarterectomy (CFA). A plan was discussed for the Veteran to undergo a surgical procedure – a left lower extremity angiogram with intervention. Thus, the August 27, 2018 private outpatient vascular surgery on appeal was pre-planned. The Board does not dispute the appellant’s assertion regarding the “medical necessity” of performing the two vascular procedures on August 27, 2018 and September 28, 2018. However, these procedures were pre-planned or pre-scheduled in advance. Thus, neither procedure was a surprise. The Veteran had been experiencing relevant symptoms for over a month. His private follow-up treatment after his initial July 2018 hospital admission was continuous. There was no sudden or acute onset of symptoms requiring immediate vascular surgery on either August 27, 2018 or September 28, 2018. Therefore, immediate medical attention to perform these two vascular surgeries did not exist in this case. They were pre-scheduled surgeries. And the September 12, 2018 private visit at BASS in the middle of the two surgeries was merely for follow-up testing according to the 93922 and 93926 CPT Codes utilized for this visit in the December 2018 FPPS 837 Institutional EDI Data Displays. Also, the Veteran did not require an ambulance to transport him to his outpatient vascular surgeries with follow-up testing on either August 27, 2018, September 12, 2018, or September 28, 2018. See 38 C.F.R. § 17.1002(c). In addition, there is neither clinical evidence of record nor a lay allegation that a VA facility (the VAMC in San Francisco) was not equipped or not capable of performing his outpatient vascular surgeries with follow-up testing on either August 27, 2018, September 12, 2018, or September 28, 2018. See 38 C.F.R. § 17.53. There is no evidence of record suggesting that the particular vascular treatment the Veteran required would have been refused by the VAMC in San Francisco on either August 27, 2018, September 12, 2018, or September 28, 2018. See 38 C.F.R. § 17.120(c). Thus, the nature of the treatment itself is not at issue. Moreover, as to the relative distance of the travel involved, the Board, and its reviewing Courts, may take judicial notice of facts, as compared to evidence, which are not subject to interpretation. See, e.g., Yeoman v. West, 140 F.3d 1443 (Fed. Cir. 1998); Dedicatoria v. Brown, 8 Vet. App. 441 (1995) (judicial notice of laws). Applying Google Maps, the distance from the Veteran’s home to the VAMC in San Francisco, California is a 43-minute drive (16.1 miles). Similarly, the distance from the Veteran’s home to the private facility, BASS, is a 27-minute drive (17.9 miles). As such, this factor does not weigh in the appellant’s favor, as both the VA and private facilities were geographically accessible and a similar distance from the Veteran’s home. In summary, on August 27, 2018, September 12, 2018, and September 28, 2018, the Veteran’s treatment for his vascular conditions was procured through private sources in preference to available Government facilities, which is not permissible. See 38 C.F.R. § 17.130. No reimbursement or payment of services not previously authorized will be made in such circumstances. An attempt to use VA facilities beforehand for his vascular outpatient surgeries and follow up testing on either August 27, 2018, September 12, 2018, or September 28, 2018, would have been considered reasonable by a prudent layperson. See 38 C.F.R. §§ 17.120(c), 17.1002(c). Therefore, the relevant factors for feasible availability weigh against the appellant (BASS) and the Veteran. The Board is sympathetic to the appellant’s assertions, but is, however, bound by the applicable law and regulations and is without authority to grant benefits on an equitable basis. 38 U.S.C. §§ 503, 7104(c) (2012). No equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress. Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). To the extent that either the appellant (BASS) or the Veteran was unaware of the proper protocol or misinformed on how to seek prior authorization for non-VA treatment, this may not be used to explain a failure to follow a promulgated regulation. See Morris v. Derwinski, 1 Vet. App. 260 (1991), citing Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384-85 (1947). Persons dealing with the Government are charged with knowledge of Federal statutes and lawfully promulgated agency regulations, regardless of actual knowledge or hardship resulting from innocent ignorance. Morris, 1 Vet. App. at 265. VA regulations are “binding on all who seek to come within their sphere,” regardless of whether a claimant has actual knowledge of what is in the regulations. Jernigan v. Shinseki, 25 Vet. App. 220 (2012). Accordingly, the Board finds that the preponderance of the evidence is against payment or reimbursement of medical expenses incurred during non-VA medical services (outpatient vascular surgeries with follow-up testing) provided at BASS on August 27, 2018, September 12, 2018, and September 28, 2018, on the basis of   prior authorization. 38 U.S.C. §§ 1703, 5107. This prior authorization claim is denied. III. “Unauthorized” Medical Expense Reimbursement The appellant has also requested payment or reimbursement from VA for the Veteran’s unauthorized medical expenses for his private outpatient vascular surgeries with follow-up testing provided at BASS on August 27, 2018, September 12, 2018, and September 28, 2018. The appellant (BASS) contends that the private outpatient vascular surgeries with follow-up testing on those three dates were rendered in a “medical emergency” 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. Specifically, BASS asserts that the private treatment provided on these three dates meets the “emergent need category” due to “medical necessity following a hospital admission.” BASS adds that the private treatment was rendered “in good faith.” Thus, VA should allocate payment for the private medical services rendered by BASS. See December 2018 NODs; October 2019 VA Form 9. In an August 2019 reconsideration decision, the AOJ determined that VA facilities were “feasibly available” to the Veteran on August 27, 2018, September 12, 2018, and September 28, 2018. See 38 C.F.R. §§ 17.53, 17.1002(c). In the same decision, the AOJ also determined that the three private treatments on August 27, 2018, September 12, 2018, and September 28, 2018 were not rendered in a “medical emergency.” See 38 C.F.R. § 17.1002(b). The appellant appealed the denial to the Board. At the outset, as explained in detail above in the present Board decision, the totality of the circumstances demonstrates that the VAMC in San Francisco was “feasibly available” to the Veteran to perform the outpatient vascular surgeries with follow-up testing on August 27, 2018, September 12, 2018, and September 28, 2018. See 38 U.S.C. § 1725(f)(1)(A); 38 C.F.R. §§ 17.53, 17.120(c), 17.1002(c). Therefore, the unauthorized medical expenses claim can simply be denied on this basis. Moreover, the Board finds that the totality of the circumstances demonstrates that the Veteran’s outpatient vascular surgeries with follow-up testing on August 27, 2018, September 12, 2018, and September 28, 2018 were not rendered in a “medical emergency” under the prudent layperson standard. See 38 U.S.C. § 1725(f)(1); 38 C.F.R. § 17.1002(b). Pursuant to the Veterans Millennium Health Care and Benefits Act, payment or reimbursement of non-VA emergency medical services for nonservice-connected disorders for veterans without insurance is available if certain conditions are met. 38 U.S.C. § 1725; 38 C.F.R. §§ 17.1000-17.1008. Effective October 10, 2008, the provisions of 38 U.S.C. § 1725 and § 1728 were amended. See Veterans’ Mental Health and Other Care Improvements Act of 2008, Pub. L. No. 110-387, § 402, 122 Stat. 4110 (2008). The changes are liberalizing in that they make reimbursement for medical expenses mandatory instead of discretionary, as well as expand the definition of “emergency treatment” beyond the point of stabilization. In addition, the changes apply the more liberal prudent layperson standard for determining whether an actual medical emergency existed under either 38 U.S.C. § 1725 and § 1728. Under the applicable VA regulation, a “medical emergency” exists when the initial evaluation and treatment 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. This standard would be met if there were an emergency medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) that a prudent layperson who possesses an average knowledge of health and medicine could reasonably expect the absence of immediate medical attention to result in placing the health of the individual in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. 38 C.F.R. § 17.1002(b) (2019). Both medical and lay evidence may be considered in a prudent layperson evaluation for determining what constitutes a medical emergency. That is, VA should weigh the totality of the circumstances to determine whether a prudent layperson would consider the situation emergent. Swinney v. Shinseki, 23 Vet. App. 257, 264-266 (2009) (emphasis added). The Board must consider the claimant’s state of mind at the time he or she sought private treatment and evaluate the claimant’s actions in light of what a prudent layperson would do under the same circumstances. Id. at 266. The totality of the evidence establishes that a medical emergency did not exist for the Veteran on August 27, 2018, September 12, 2018, and September 28, 2018. A prudent layperson who possesses an average knowledge of health and medicine would not reasonably expect the absence of immediate medical attention to result in placing the health of the individual in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part, on those three dates. 38 C.F.R. § 17.1002(b). In fact, the Veteran sought his private outpatient vascular surgeries with follow-up testing at BASS, which is not a private hospital or emergency department. See 38 C.F.R. § 17.1002(a). With regard to the existence of a “medical emergency,” as discussed in detail above, on August 8, 2018, several weeks before the first vascular surgery at issue, the Veteran was seen at BASS for a vascular surgery consult. He continued to report left leg pain. The assessment was peripheral arterial disease (PAD) and left critical limb ischemia (CLI), status post left femoral endarterectomy (CFA). A plan was discussed for the Veteran to undergo a surgical procedure – a left lower extremity angiogram with intervention. The Board does not dispute the appellant’s assertion regarding the “medical necessity” of performing the two vascular procedures on August 27, 2018 and September 28, 2018. However, these procedures were pre-planned or pre-scheduled in advance. Thus, neither was a surprise or an emergency. Therefore, the appellant’s contention of an “emergent” situation for all three dates on appeal is not substantiated by the other evidence of record. See Struck v. Brown, 9 Vet. App. 145, 152 (1996) (the Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence). The Veteran had been experiencing relevant symptoms for over a month. His private follow-up treatment after his initial July 2018 hospital admission was continuous. There was no sudden or acute onset of symptoms requiring immediate vascular surgery on either August 27, 2018 or September 28, 2018. Therefore, immediate medical attention to perform these two vascular surgeries did not exist in this case. They were pre-scheduled surgeries. And the September 12, 2018 private visit at BASS in the middle of the two surgeries was merely for follow-up testing according to the 93922 and 93926 CPT Codes utilized for this visit in the December 2018 FPPS 837 Institutional EDI Data Displays. Thus, that visit was clearly not a “medical emergency” under the prudent layperson standard. The Veteran was discharged home on the same day of his outpatient vascular surgeries at BASS on August 27, 2018 and September 28, 2018. There were no complications noted in the record. In this respect, the Court has recognized the significant probative value of contemporaneous medical evidence. Curry v. Brown, 7 Vet. App. 59, 68 (1994). The evidence of record does not paint a picture of an injury or symptoms immediately “hazardous” to life or to health on all three dates at issue. There is no persuasive lay or medical evidence of record that a medical emergency existed on either August 27, 2018, September 12, 2018, or September 28, 2018, despite the Veteran’s confirmed diagnoses of peripheral arterial disease (PAD) and left critical limb ischemia (CLI). Finally, the Veteran did not require an ambulance to transport him to his outpatient vascular surgeries with follow-up testing on either August 27, 2018, September 12, 2018, or September 28, 2018. Accordingly, the Board finds that the preponderance of the evidence is against payment or reimbursement of unauthorized medical expenses incurred during non-VA medical services (outpatient vascular surgeries with follow-up testing) provided at BASS on August 27, 2018, September 12, 2018, and September 28, 2018.   38 U.S.C. §§ 1725, 5107 (2012). The unauthorized medical expense reimbursement claim is denied. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.S. Rubin, 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.