Citation Nr: A21017033 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 200330-160271 DATE: October 20, 2021 ORDER Payment for expenses incurred for treatment by Aegis Sciences Corporation on February 12, 2020 is granted. FINDING OF FACT Laboratory tests performed for the Veteran on February 12, 2020 by Aegis Sciences Corporation were pre-authorized by VA. See March 2020 Resubmitted Claim. CONCLUSION OF LAW The criteria for payment for expenses incurred for treatment by Aegis Sciences Corporation on February 12, 2020 are met. 38 U.S.C. § 1703; 38 C.F.R. § 17.52. REASONS AND BASES FOR FINDING AND CONCLUSION Introduction The Veteran served on active duty in the Marine Corps from May 1969 to July 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2020 decision by the Veteran's Health Administration (Agency of Original Jurisdiction, or AOJ). On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with the Department of Veterans Affairs (VA)'s decision on their claim to seek review. This decision has been written consistent with the new AMA framework. The appellant submitted their VA Form 10182, Notice of Disagreement, in March 2020 and selected direct review of the February 2020 decision without a Board hearing or the submission of additional evidence. In adjudicating this appeal, the Board may consider evidence associated with the record before February 28, 2020, the date of the decision on appeal. However, in this regard, the Board does consider both the appellant's March 2020 resubmitted claim and their accompanying statement. An April 2021 memorandum drafted by the AOJ indicates that the original claim could not be located. Because the March 2020 resubmitted claim was produced in response to the AOJ's request to resubmit the original claim, the Board finds that it comprises a copy of that claim, and so is eligible for review as having been originally submitted before February 28, 2020. As for the appellant's March 2020 statement, the Board finds that it comprises argument rather than evidence, and therefore the Board may consider it notwithstanding the fact that it was received outside of the direct review evidence window. Entitlement to Payment for Medical Expenses When VA facilities or other government facilities are not capable of furnishing economical hospital care or medical services because of geographic inaccessibility or because they are not capable of furnishing care or services required, VA may contract with non-VA facilities to provide the appropriate care. 38 U.S.C. § 1703; 38 C.F.R. § 17.52. 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 facility, 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. Here, the treatment in question comprised a series of drug tests performed on February 12, 2020 by the appellant Aegis Sciences Corporation, and there is no evidence of any emergency treatment, nor has the appellant asserted that this treatment (drug tests) comprised emergency treatment, only that it was "medically necessary." See March 2020 Appellant Statement. Therefore, the question at issue is whether the drug tests performed on February 12, 2020 were pre-authorized by VA. The evidence of record relevant to this question is minimal. Unfortunately, the AOJ's development of the claim did not include obtaining either a record of pre-authorization of the treatment at issue or any evidence that treatment was not pre-authorized. Rather, all evidence on this point was submitted by the appellant. The AOJ's February 2020 decision stated that the claim was denied because "no authorization number was submitted" and asked the appellant to resubmit the claim "with the authorization number if approved." The appellant submitted a claim form in March 2020 marked "reconsideration" which included a "prior authorization number." However, the appellant also submitted a statement that "we didn't know prior authorization was required." See March 2020 Appellant Statement. The appellant's statement tends to suggest that prior authorization was not obtained for the treatment in question. On the other hand, the submission of a claim form with a prior authorization number tends to suggest that authorization was obtained. After all, the AOJ asked the appellant to resubmit the claim with an authorization number "if approved." In short, of only two documents in the file relevant to the question at issue, one tends to support the appellant's claim, and one weighs against it. Therefore, since the evidence is nearly equally balanced, and in light of the fact that the AOJ's development of this claim did not include obtaining any evidence relevant to the question at issue, the Board resolves all reasonable doubt in the claimant's favor and finds that the treatment in question was pre-authorized by VA. See 38 C.F.R. § 3.102. Therefore, payment for expenses incurred for treatment by Aegis Sciences Corporation on February 12, 2020 is warranted. S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Timmerman, Associate 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.