Citation Nr: 21070923 Decision Date: 11/27/21 Archive Date: 11/27/21 DOCKET NO. 00-18 202 DATE: November 27, 2021 ORDER Payment or reimbursement of beneficiary travel expenses incurred from March to June 2000 is denied. FINDING OF FACT The Veteran's treatment in El Paso, Texas, from March to June 2000 was not at the nearest non-Department of Veterans Affairs (VA) facility where the care or services could be provided, beneficiary travel payment had not been authorized by VA prior to such treatment, and lack of prior VA authorization was not justified. CONCLUSION OF LAW The criteria for payment or reimbursement of beneficiary travel expenses incurred from March to June 2000 are not met. 38 U.S.C. §§ 111, 5107; 38 C.F.R. §§ 17.143-17.145 (1999); 38 C.F.R. §§ 70.1-70.30 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1963 to September 1966. This appeal is before the Board of Veterans' Appeals (Board) from an April 2000 decision of the VA Veterans Health Administration (VHA). In September 2002, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ). A transcript is included in the claims file. The Board remanded the appeal in August 2003, with instructions for the agency of original jurisdiction (AOJ) to provide further notice regarding the Veteran's claim and associate with the file any relevant documents not associated with the file. The Board again remanded the appeal in June 2005 to undertake the development ordered in the August 2003 remand. Since that time, the AOJ, in April 2019, sent the Veteran notice of what information and evidence was required to substantiate his claim, and all available relevant evidence appears to have been associated with the claims file. Under these circumstances, the Board finds that the AOJ has substantially complied with the Board's remand instructions, and that any further remand for additional development requests would not aid in substantiating the Veteran's claim and is not warranted. See D'Aries v. Peake, 22 Vet. App. 97, 105-106 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-147 (1999). The Veteran, in July 2021, was apprised that the VLJ who conducted the September 2002 hearing is no longer with the Board and, as a result, he could have an additional hearing before another VLJ who would issue the final decision in his appeal. He was informed that if he did not respond within 30 days from the date of the letter, the Board would assume that he did not want another hearing and proceed accordingly. The Veteran did not respond. See 38 C.F.R. § 20.604. Legal Criteria Pursuant to 38 U.S.C. § 111 and 38 C.F.R. part 70, VHA may make payments for travel expenses incurred in the United States to help veterans and other persons obtain care or services from VHA. 38 C.F.R. § 70.1. Persons eligible for beneficiary travel payments are listed under 38 C.F.R. § 70.10, and include a veteran who travels to or from a VA facility or VA-authorized health care facility for examination, treatment, or care, and who is unable to defray the expenses of that travel. 38 C.F.R. § 70.10(a)(6). A beneficiary with no service-connected disabilities shall be considered unable to defray the expenses of travel if the beneficiary: (1) Has an income for the year (as defined under 38 U.S.C. § 1503) immediately preceding the application for beneficiary travel that does not exceed the maximum annual rate of pension that the beneficiary would receive under 38 U.S.C. § 1521 (as adjusted under 38 U.S.C. § 5312) if the beneficiary were eligible for pension during that year; or (2) Is able to demonstrate that due to circumstances such as loss of employment, or incurrence of a disability, his or her income in the year of travel will not exceed the maximum annual rate of pension that the beneficiary would receive under 38 U.S.C. § 1521 (as adjusted under 38 U.S.C. § 5312) if the beneficiary were eligible for pension. 38 C.F.R. § 70.10(c). Beneficiary travel payment is generally limited to travel from the beneficiary's residence to the nearest VA facility where the care or services could be provided and from such VA facility to the beneficiary's residence. However, payment may be made for travel from the beneficiary's residence to the nearest non-VA facility where the care or services could be provided and from such facility to the beneficiary's residence if VA determines that it is necessary to obtain the care or services at a non-VA facility. 38 C.F.R. § 70.30(b)(1), (2). VA regulations in effect at the time of the March and June 2000 travel in question provided that beneficiary travel payment may be approved without prior authorization only in those cases where VA determined that there was a need for prompt medical care which was approved and: (1) The circumstances prevented a request for prior travel authorization, or (2) Due to VA delay or error prior authorization was not given or (3) There was a justifiable lack of knowledge on the part of a third party acting for the veteran that a request for prior authorization was necessary. In other cases, payment may be approved for such travel without prior authorization only upon a finding by VA that failure to secure prior authorization was justified. 38 C.F.R. § 17.145 (1999); see also 38 C.F.R. §§ 17.143, 17.144 (1999). Reasonable doubt regarding any point is resolved in favor of the claimant. 38 U.S.C. § 5107. Factual Background In response to a January 2000 request from the Veteran, in a February 2000 letter, a VA Medical Center (VAMC) approved his request for a Fee Basis authorization for psychotherapy. The letter informed the Veteran that he "may use this authorization to receive treatment by a physician of [his] choice for a total of twelve (12) visits within one year for psychotherapy and medication management," and that the validity period of this authorization was from February 21, 2000, to February 20, 2001. A private evaluation report from a psychologist, Dr. R.B.P., reflects that the Veteran was evaluated by R.B.P. at his practice in El Paso, Texas, for mental health complaints. The evaluation reflects that the Veteran was self-referred. The Veteran subsequently requested reimbursement of his travel expenses for his mental health therapy in El Paso, and VA denied the request. In an April 2000 statement, the Veteran expressed disagreement with VA's decision, and clarified that he was requesting reimbursement for mileage, food, lodging, and other travel expensed incurred to obtain private treatment in El Paso from his residence in Albuquerque, New Mexico. In an April 2000 decision letter, the VAMC again reconsidered and denied the Veteran's claim for reimbursement of travel and related expenses, and the Veteran again expressed disagreement in a May 2000 statement. A second private mental health evaluation report from Dr. G.L.B., reflects that he evaluated the Veteran on June 5, 2000, in El Paso. At the time of the 2000 treatment in question, the Veteran had the service-connected disabilities of left knee derangement, rated 10 percent, and bilateral pes planus, rated 10 percent. The distance from his residence in Albuquerque, New Mexico, to El Paso, Texas, was approximately 4 hours driving time (275 miles). In written statements dated in April, May and August 2000, and August 2001, as well as in his September 2002 testimony before the Board, the Veteran asserted that there did not exist a "nearest VA health care facility which could have provided [him] the care," and no private provider in New Mexico from whom he could seek mental health care. He argued that a New Mexico politician who had interrogated the Veteran at an earlier date had too much political influence in the state, so that the politician could obtain the Veteran's treatment records and use them against the Veteran. The Veteran asserted that any attempt to obtain mental health care by VA or in New Mexico, generally, would aggravate his mental health condition. In his May 2000 statement, the Veteran additionally argued that the February 2000 Fee Basis authorization was to obtain mental health therapy both outside VA and outside New Mexico. As reflected in its April 2000 denial, July 2000 statement of the case, and January and April 2021 supplemental statements of the case, the AOJ denied the Veteran's claim for reimbursement of travel and related expenses for his 2000 treatment in El Paso based on the following: the Veteran was not traveling for treatment of a service-connected disability and did not have service-connected disability rated 30 percent or more; his reported income was in excess of the maximum rate for VA pension eligibility; and he was not referred by VHA or a VHA physician to the providers in El Paso. The AOJ noted, moreover, that even if the service-connection or income requirements had been met, VA would only have been "able to reimburse [him] for travel to the closest facility that could have met [his] medical needs" under VA regulations. Payment or reimbursement of beneficiary travel expenses incurred from March to June 2000 is denied. Even assuming, without conceding, that the Veteran met the income level requirements under VA regulations for travel expense reimbursement eligibility, reimbursement of beneficiary travel expenses incurred from March to June 2000 is not warranted in this case under either the current provisions governing beneficiary travel pay or those in effect at the time of the 2000 travel in question. The Board acknowledges the Veteran's contentions that he was not able to receive mental health care in New Mexico because he felt he was being antagonized by a powerful state politician. Indeed, the Veteran submitted a copy of Interrogatories he was required to complete in connection with a Complaint filed against him by such politician, the Attorney General of the state at that time, as well as a news article describing how the Attorney General had filed a civil lawsuit against the Veteran and his company for allegations of racketeering and making deliberate misrepresentations in the operation of his business. As reflected in the February 2000 letter, the Veteranin response to his request to receive non-VA mental health carewas authorized by VA to receive mental health therapy from a non-VA provider on a Fee Basis. However, the record contains no VA medical determination, or any other VA decision, referring the Veteran to either provider from whom he received treatment in El Paso in 2000, or establishing the necessity for the Veteran to obtain such non-VA care or services at a facility outside the state of Arizona; there is no VA determination that the Veteran's providers in El Paso were the nearest non-VA facilities to the Veteran's residence where psychotherapy services could be provided. The Veteran's mere contentions that he was not able to receive non-VA mental health care in New Mexico are not supported by any medical evidence, much less a VA medical determination, and the Board finds them not probative. As the record does not reflect that the Veteran's treatment in El Paso in March and June 2000 was at the nearest non-VA facility where the care or services could be provided, payment for such travel is not permitted under current VA regulations. See 38 C.F.R. § 70.30(b). Furthermore, while Fee Basis care was authorized for a non-VA provider in February 2000, there was no VA authorization of beneficiary travel payment for the Veteran's El Paso treatment prior to such treatment. In his May 2000 statement, the Veteran argued that the February 2000 Fee Basis authorization was to obtain mental health therapy both outside VA and outside New Mexico. However, the only evidence of such approval he has pointed to is the February 2000 Fee Basis authorization itself, which only authorized him "to receive treatment by a physician of [his] choice for a total of twelve (12) visits within one year for psychotherapy and medication management" between February 21, 2000, and February 20, 2001; it does not indicate approval for payment of beneficiary travel costs for treatment in El Paso. In this regard, the second private mental health evaluation report from Dr. G.L.B., reflecting that he evaluated the Veteran on June 5, 2000, in El Paso, demonstrates that the Veteran received such treatment after already receiving denials of travel expense reimbursement for his previous treatment in El Paso, when he was aware VA had specifically disapproved reimbursement for such travel expenses to El Paso. The record does not reflect, moreover, that any circumstances prevented a request for prior travel authorization, that prior authorization was not given due to VA delay or error, that there was a justifiable lack of knowledge on the part of a third party acting for the Veteran that a request for prior authorization was necessary, or that failure to secure prior authorization was justified. To the extent that the Veteran has argued that a lack of prior authorization was justified due to his asserted inability to receive proper mental health services in the state of New Mexico, the argument is not persuasive. Even if the Veteran had had such beliefs when seeking treatment in El Paso, there is nothing in the record that justifies a failure to obtain proper authorization for reimbursement of travel expenses from VA before traveling to El Paso for his treatment. Furthermore, again, there is no competent evidence of record, such as a medical determination, that receiving psychotherapy services in another state, approximately 4 hours away, was necessary or justified at all, despite the Veteran's assertions of such. Therefore, a preponderance of the evidence is against a finding that the Veteran's treatment in El Paso in March and June 2000 was at the nearest non-VA facility where the care or services could be provided, that beneficiary travel payment had been authorized by VA prior to such treatment, or that a lack of prior VA authorization was justified. Accordingly, payment or reimbursement of beneficiary travel expenses incurred from March to June 2000 must be denied. [SIGNATURE ON NEXT PAGE] 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.