Citation Nr: A21016493 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 210203-175146 DATE: October 7, 2021 ORDER Payment of expenses for medical services performed by Aegis Science Corporation (ASC) on November 22, 2020, is denied. FINDING OF FACT The non-emergent medical services performed by ASC on November 22, 2020, were not authorized by the Department of Veterans Affairs (VA). CONCLUSION OF LAW There is no legal basis for payment of expenses for medical services performed by ASC on November 22, 2020. 38 U.S.C. §§ 1703, 1725,1728; 38 C.F.R. §§ 17.4000-17.4040. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1958 to September 1962. He died in January 2021. The appellant is ASC, the non-VA provider of medical services furnished to the Veteran on November 22, 2020. This matter is before the Board of Veterans' Appeals (Board) from a decision of the VA Veterans Health Administration, which constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. See 38 C.F.R. § 3.2400(a)(1). In its February 2021 VA Form 10182, Decision Review Request: Board Appeal, the appellant elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Evidence was added to the claims file during a period of time when new evidence may not be considered. As the Board is deciding the claim on appeal, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The appellant may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, as discussed below, the Board is not denying the matter on appeal based on any disputed factual matter, but rather on the basis that the appellant is not entitled to payment as a matter of law. The AOJ denied payment for non-emergency medical services furnished by ASC on November 22, 2020, pursuant to 38 U.S.C. § 1703, on the basis that such services had not been authorized by VA as required for payment. The appellant appealed in March 2020, arguing that the servicesCOVID-19 testingwere medically necessary, and generally referencing two laws and three government departments. It contended, in essence, that such laws, and the regulations of such departments, mandated that VA pay the full amount requested by ASC of expenses of a COVID-19 test. The appellant cited no specific provision of any statute or regulation. 38 U.S.C. § 1703 establishes VA's program to furnish hospital care, medical services, and extended care services to covered veterans through non-VA health care providers (the Veterans Community Care Program), and is implemented under 38 C.F.R. §§ 17.4000-17.4040. 38 C.F.R. § 17.4010, which establishes the conditions of a Veteran's eligibility for non-VA treatment under § 1703, explicitly states that, if such conditions are met, "the covered veteran may elect to receive authorized non-VA care under § 17.4020." (Emphasis added.) Under 38 C.F.R. § 17.4020(a), "a covered veteran eligible for the Veterans Community Care Program under § 17.4010 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." (Emphasis added.) In the absence of such VA authorization, in order to be entitled to payment or reimbursement of medical expenses incurred at a non-VA facility, certain conditionsincluding that the treatment was for a medical emergencymust be met. See 38 U.S.C. §§ 1725, 1728. Payment of expenses for medical services performed by ASC on November 22, 2020, is denied. Here, the COVID-19 testing services provided by ASC were not emergency treatment and not authorized by VA, and the appellant has not argued otherwise. Rather, the appellant's claim for payment is based on the contention that, despite this, VA should retroactively authorize payment, or should pay the appellant's claim despite there being no authorization, based on the fact that it was a medically necessary COVID-19 test and that VA is mandated by law to pay for it. To the extent that the appellant argues that VA should retroactively authorize payment, or should have authorized payment previously, the appellant is contesting a VA decision regarding whether to furnish services to a Veteran through a non-VA provider under 38 U.S.C. § 1703(d) (Conditions under which care is required to be furnished through non-Department providers) and/or (e) (Conditions under which care is authorized to be furnished through non-Department providers). However, such decisions are statutorily barred from being appealed to the Board. 38 U.S.C. § 1703(f) ("The review of any decision under subsection (d) or (e) shall be subject to the Department's clinical appeals process, and such decisions may not be appealed to the Board of Veterans' Appeals"). As the Board has no authority to review these contentions, they provide no legal basis for reimbursement benefits. To the extent that the appellant argues that VA should pay its claim despite no authorization based on the fact that it was a medically necessary COVID-19 test and that VA is mandated by law to pay for it, the Board reiterates that while the appellant generally referenced two laws and some government departments, it cited no specific provision of any statute or regulation to support its assertion. Such arguments, therefore, do not provide any legal basis for granting reimbursement benefits. As noted above, 38 C.F.R. §§ 17.4010 and 17.4020(a) explicitly require VA authorization of non-VA medical services for VA payment of such services. As there was no VA authorization of the November 22, 2020, non-emergency COVID-19 testing services performed by ASC, which the appellant does not dispute, there is no legal basis for VA payment of such expenses. Accordingly, the appellant's claim for payment of the expenses of such services must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). JONATHAN B. KRAMER 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.