Citation Nr: 22014746 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 18-53 014 DATE: March 14, 2022 ORDER Payment or reimbursement of medical expenses incurred on June 28, 2016, at Seattle Cancer Care Alliance (SCCA) is granted. FINDING OF FACT The Veteran's June 28, 2016, episode of care at SCCA was authorized by the Department of Veterans Affairs (VA). CONCLUSION OF LAW The criteria for payment or reimbursement of medical expenses incurred on June 28, 2016, at SCCA are met. 38 U.S.C. §§ 1703, 5107 (2015, 2021); 38 C.F.R. § 17.52. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1983 to October 1987. This appeal is before the Board of Veterans' Appeals (Board) from August and September 2016 decisions of the VA Veterans Health Administration. Pursuant to 38 U.S.C. § 1703, as it pertains to treatment prior June 6, 2019, 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 (2015); 38 C.F.R. § 17.52(a)(3); see also Veterans Community Care Program, 84 Fed. Reg. 26278, 26306 (June 5, 2019). Whether treatment was authorized is a factual, not a medical, determination. Similes v. Brown, 5 Vet. App. 555 (1994). Payment or reimbursement of medical expenses incurred on June 28, 2016, at SCCA is granted. The Veteran underwent a clinical breast examination (CBE) on June 28, 2016, at SCCA as follow-up for a history of atypical findings on mammogram and biopsy in 2012. As reflected in its August and September 2016 decision letters, the agency of original jurisdiction (AOJ) denied reimbursement for the episode of care under to 38 U.S.C. § 1703 on the basis that it had not been authorized by VA. As shown in a May 2017 internal email, a VA claims assistant determined that the VA consults and authorization specifically stated that the Veteran had been authorized for follow-up service after her surgery, but they did not indicate that from July 28, 2015, to the present the Veteran was authorized for further follow-up service besides a yearly mammogram. The email cited consults dated on July 19, 2012, and August 26, 2014, as well as a July 28, 2015, consult that specifically pertained to a scheduled November 9, 2015, mammography examination. As reflected in a November 2018 statement, the Veteran asserts that her June 28, 2016, CBE at SCCA was part of ongoing VA-authorized treatment there since 2012, and that she had tried very hard to comply with the authorization rules for obtaining non-VA treatment and had believed that the episode of care had been authorized. The Veteran pointed to all of her medical visits and payments made on her behalf by VA to SCCA since 2012 reflecting continued, covered visits like the June 28, 2016, CBE, from 2012 until the present, both before and after the episode of care in question. VA treatment records confirm that, since 2012, the Veteran had been receiving non-VA mammograms and CBEs from SCCA, approved by VA for payment. October and November 2014 VA treatment records reflect that the Veteran's VA primary care provider recommended CBE every 6 months. It was noted that the Veteran was being treated at SCCA. Her VA treating physician was asked whether she should continue monitoring through SCCA or return to the VA clinic for her CBE, and the physician replied that SCCA requested to see her back, so the physician favored continuing her care at SCCA. An April 2015 VA note reflects that the Veteran had called requesting the end date of her of non-VA breast consult, as she had been contacted by SCCA to schedule an appointment. It was noted that a message was left with the Veteran that her consult was good through July 31, 2015, and that if she had an appointment past that date, she needed to inform VA. VA notes further reflect the contents of SCCA treatment notes, including one from May 2015 stating that the Veteran had been advised to return in October 2015 for follow-up, and every 6 months at SCCA for CBE. A clinical indication note dated July 28, 2015, for "NON VA CARE MAMMOGRAPHY/BREAST CONSULTATION," notes that fee-basis consults for routine mammography services were being approved with the justification that VA facility did not provide the required service. Another October 9, 2015, VA note indicates that the Veteran had a scheduled mammogram at SCCA on November 9, 2015, and that authorization for the service was effective November 9, to December 9, 2015. A December 2015 VA note contains the findings of the November 9, 2015, episode of care at SCCA, including the mammogram results and that the treating physician "discussed the findings of CBE with the patient" and "continue[d] to recommend every six-month CBE here in the BHC with annual screening mammograms." The Veteran was "advised to return in 5/2016 for CBE followup, or sooner for anything new or changed on her BSE." An April 29, 2016, clinical indication note, almost identical to the July 28, 2015, note, also states that it was for "NON VA CARE MAMMOGRAPHY/BREAST CONSULTATION." The June 28, 2016, treatment records from SCCA for CBE follow-up reflect that the Veteran was last seen in November 2015, at which time CBE was unremarkable. A December 15, 2016, VA nursing note states that a new consult was entered for the Veteran as she was followed by SCCA and due for follow-up. A December 20, 2016, "VHA CHOICE APPROVAL FOR MEDICAL CARE, VA-FORM 10-0386" reflects the following: "This is a request for non-VA care for evaluation of breast cancer (suspected or confirmed), breast lump, or other breast symptom. The following services are pre-approved: Diagnostic breast imaging; office visits with breast oncologist, breast surgeon, or clinical breast specialist; cyst aspiration, core biopsy, surgical excision; breast cancer surgery; cancer care coordination, and recommended follow-up visits (for this condition only) for up to one year from the date this consult was placed." Subsequent VA treatment records reflect that, in January 2018, "authorization for ongoing SCCA follow-up ha[d] been approved and faxed to SCCA." In March 2020, it was noted that the "Veteran is followed by SCCA for her breast clinical exams as she is high risk," and "due for her clinical examination March 2020"; it was further noted that that the Veteran was given "authorization numbers for breast care consult and breast imaging consult," and that she stated that she would make her appointments and then call TriWest. In this case, again, the nearly identical July 28, 2015, April 29, 2016, clinical indication notes for "NON VA CARE MAMMOGRAPHY/BREAST CONSULTATION" reflect authorizations for the November 2015 mammogram and CBE, which were paid for by VA, and the June 28, 2016, treatment, which was not on the basis that it was a CBE and not an annual mammogram, which had been the only non-VA treatment authorized. The record reflects that, prior to these episodes of care, CBEs at SCCA every 6 months, whether on the same date as an annual mammogram or not, including in May 2015, had been authorized and paid for by VA since 2012, with the recommendation of the Veteran's VA physician being for the Veteran to receive such care at SCCA. There are, however, no copies of these earlier authorizations of record, and it is unclear as to howor whysuch authorizations differed from those beginning in July 2015 or 2016. In this regard, it is also unclear as to why the Veteran or SCCA would have thought they were different or that they did not include regular CBEs as they had previously. This is particularly the case since VA apparently authorized and paid for the November 2015 CBE at SCCA, as well as subsequent non-VA CBEs in its December 2016 authorization and as reflected in subsequent VA treatment records until at least 2020. In short, it appears that, from 2012 to at least 2020, the Veteran received VA-authorized non-VA CBEs from SCCA, whether on the same date as a mammogram or not, and it is unclear exactly how the record supports the AOJ's finding that the June 28, 2016, CBE alone was inexplicably not authorized by VA, as only annual mammograms at SCCA were authorized at that time. The Board notes the VA claims assistant's May 2017 internal email stating that the VA consults and authorization specifically stated that the Veteran had been authorized for follow-up service after her surgery but that they did not indicate that from July 28, 2015, to the present the Veteran was authorized for further follow-up service besides a yearly mammogram. However, again, the record is unclear as to how (or why) the authorizations had been limited beginning July 28, 2015, or whether or how this was communicated to the Veteran and/or SCCA. It is also unclear why, if this was the case, the November 2015 CBE at SCCA appears to have been approved and paid for by VA. Furthermore, the information contained in the email appears inconsistent with the record, which shows that subsequent CBEs at SCCA, since at least December 2016, continued to be authorized and paid for by VA (a fact emphasized by the Veteran). Given the record of the Veteran's non-VA care at SCCA, including both regular CBEs and mammograms both prior to and after the June 28, 2016, episode of care, the clinical indication notes for the June 28, 2016, treatment at SCCA for "NON VA CARE MAMMOGRAPHY/BREAST CONSULTATION," and the fact that the November 2015 CBE at SCCA was considered authorized and paid for by VA, and affording the Veteran the benefit of the doubt, the Board finds that the June 28, 2016, episode of care at SCCA was authorized by VA. Accordingly, payment or reimbursement of medical expenses incurred on June 28, 2016, at SCCA must be granted. See 38 U.S.C. § 5107. 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.