Citation Nr: 22017373 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 17-36 292A DATE: March 24, 2022 ORDER Entitlement to payment or reimbursement of the medical expenses incurred during eight separate chiropractic treatment visits provided at Van Chiropractic Clinic for the time period from April 30, 2015 through January 4, 2016, on the basis of prior authorization under the provisions of 38 U.S.C. § 1703(a), is denied. FINDING OF FACT The evidence of record does not reflect that the Veteran received prior written authorization from VA for the eight chiropractic treatment visits provided at Van Chiropractic Clinic for the time period from April 30, 2015 through January 4, 2016. CONCLUSION OF LAW The criteria for payment or reimbursement for the medical expenses incurred during eight separate chiropractic treatment visits provided at Van Chiropractic Clinic for the time period from April 30, 2015 through January 4, 2016 are not met. 38 U.S.C. §§ 1703, 1725, 1728, 5107 (2012); 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120, 17.121, 17.1002 (prior to June 5, 2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from March 1968 to December 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from November 2015, January 2016, and April 2016 decisions of the Department of Veterans Affairs (VA) Health Administration (VHA). The case was previously before the Board in June 2019 when it was remanded for further development. Entitlement to payment or reimbursement of the medical expenses incurred during eight separate chiropractic treatment visits provided at Van Chiropractic Clinic for the time period from April 30, 2015 through January 4, 2016, on the basis of prior authorization under the provisions of 38 U.S.C. § 1703(a), is denied. The Veteran is seeking payment or reimbursement of medical expenses incurred during eight chiropractic treatments from April 30, 2015 through January 4, 2016. The Veteran asserts that the treatment was pre-authorized under 38 U.S.C. § 1703(a). 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(a); 38 C.F.R. § 17.52(a). Non-emergent care by a private facility, including hospital care, must be approved by VA either through individual authorization or via contract. Id. With the exception of emergency care, the admission of a veteran to a non-VA hospital at VA expense must generally be authorized in advance, per 38 C.F.R. § 17.54, in effect prior to June 5, 2019. The Board notes that as of June 5, 2019, 38 C.F.R. § 17.54 has been superseded by regulations that were enacted pursuant to the VA Mission Act. See e.g., 38 C.F.R. § 17.4020. As these new regulations may not be applied on a retroactive basis, they are not applicable herein. See e.g., 84 Federal Register 26278, 26304 (indicating that the new Mission Act rules became effective June 6, 2019, but not earlier). In adjudicating a claim for payment or reimbursement of medical expenses, 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. § 170(a); 38 C.F.R. § 17.54. This is a factual, not a medical, determination. Similes v. Brown, 6 Vet. App. 555, 557 (1994). From April 30, 2015 through January 4, 2016, the Veteran received non-VA medical services at Van Chiropractic Clinic in Billings, Montana, on eight separate occasions: April 30, 2015; May 4, 2015; August 4, 2015; September 23, 2015; October 5, 2015; November 2, 2015; December 2, 2015; and January 4, 2016. According to the claims submitted by the private chiropractic provider, the medical services provided on these eight occasions were "Chiropractic Manipulative Treatment" under the Current Procedural Terminology (CPT) Code 98940. These visits were on an outpatient basis, for purposes of treating the Veteran's nonservice-connected chronic lumbar spine and thoracic spine pain. The Veteran was 66-67 years of age at the time of his eight chiropractic treatments. It appears the Veteran had no private health insurance at the time of treatment. During all eight chiropractor visits from April 30, 2015 through January 4, 2016, there is neither evidence nor allegation of the existence of private inpatient hospital treatment or of the existence of a medical emergency for the Veteran. Therefore, it is undisputed that these eight chiropractic visits were non-emergent in nature in an outpatient setting. Consequently, the issue of payment or reimbursement of unauthorized non-VA "emergency" treatment pursuant to the Veterans Millennium Health Care and Benefits Act, does not apply here. See generally 38 U.S.C. § 1725; 38 C.F.R. §§ 17.1000-17.1008. The Veteran asserts that VA provided prior authorization for his eight chiropractor visits at Van Chiropractic Clinic, a private facility, from April 30, 2015 through January 4, 2016. Specifically, on April 25, 2014, the Fort Harrison, Montana VA Medical Center (VAMC) issued a VA consult request for Van Chiropractic Clinic to provide the Veteran with 12 chiropractic visits. It was noted that a VA facility was not feasibly available because the nearby VA facility did not provide chiropractic services. These 12 chiropractic visits were for the purpose of treating the Veteran's chronic lumbar spine and thoracic spine pain. In the 2015 and 2016 decisions on appeal, and in the November 2016 Statement of the Case (SOC), the Agency of Original Jurisdiction (AOJ) denied the Veteran's prior authorization claim under 38 U.S.C. § 1703(a), for the eight visits in question from April 30, 2015 through January 4, 2016. The AOJ acknowledged that the VAMC had authorized 12 chiropractic visits for the Veteran according to the April 25, 2014 VA consult request. However, according to the terms of this VA consult request, the prior authorization for 12 visits was only in effect for a specific time frame, for a maximum of 12 months, beginning on April 25, 2014 and ending on April 24, 2015. As the prior authorization was only in effect until April 24, 2015, the Veteran's prior authorization contract would not apply to the eight chiropractic visits on appeal that occurred from April 30, 2015 through January 4, 2016. These visits fell outside of the VA authorized timeframe. Veteran Payment History records indicate that payments were made for 12 private chiropractor visits between April 25, 2014 and April 24, 2015, on May 12, 2014, June 3, 2014, September 24, 2014, October 2, 2014, October 13, 2014, November 13, 2014, December 2, 2014, January 5, 2015, January 22, 2015, February 2, 2015, March 2, 2015, and April 6, 2015. As VA had already paid for 12 chiropractor visits during the prior authorization timeframe, the Veteran's eight visits at issue, from April 30, 2015 through January 4, 2015, constituted additional visits that were not preauthorized and occurred after the expiration date of the VA prior authorization consult. A February 2, 2016 VHA record indicates that the 6 visits with a non-VA provider over 6 months were approved through the VA Choice Program. However, the visits at issue took place prior to February 2, 2016. The Veteran has asserted that he misunderstood and did not realize that there was a specific 12-month timeframe for his private chiropractor visits, ending on April 24, 2015. In his November 2016 notice of disagreement, the Veteran stated that he had thought his treatment was authorized during the period denied. In a July 2017 statement submitted with his VA Form 9, the Veteran noted that his primary care provider was changed by VA at the time when the questionable visits occurred. In a statement signed in June 2018, the Veteran stated that his care was established with a VA physician who left in 2015, and he was reassigned to Dr. B., who stated that she would not authorize the care from April 30, 2015 to January 4, 2016, after the services had been provided. He asserted that he was not notified by VA, VA Montana HCS, or Van Chiropractic PC that the care from April 30, 2015 to January 4, 2016 was not authorized. He noted that Dr. B. authorized two visits in March of 2016 through the Choice program. In a December 2016 phone call, noted in Clinical Tracking Records, the Veteran stated that at the time the authorization expired he was in the process of being transferred to a new VA physician and his newly assigned physician had done nothing for him regarding the chiropractic care. He stated that he finally got CHOICE authorization in February 2016 for the chiropractic care. 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). Because there was no actual transfer from a VA facility to a private facility, and no treatment for a service-connected disability, no other section of 38 U.S.C. § 1703 has the potential of being applicable to the current Veteran, except for the provision regarding "medical services." That is, 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. 38 U.S.C. § 1703(a)(2)(B); 38 C.F.R. § 17.52(a)(2)(ii). The term "medical services" includes medical examination, treatment, and rehabilitative services (i.e., outpatient care), among other services and supplies. 38 U.S.C. § 1701(6); 38 C.F.R. § 17.30(a). Therefore, the Veteran meets the basic requirements of the above prior authorization category, as "medical services" is a broad definition, which would include the Veteran's eight private chiropractor visits on an outpatient basis at Van Chiropractic Clinic from April 30, 2015 through January 4, 2016. Also, it is undisputed that a VA facility was not feasibly available to provide the Veteran with his chiropractic care during this timeframe. See 38 C.F.R. §§ 17.52(a), 17.53. The authorization for treatment from April 25, 2014 to April 24, 2015 specifically notes that the VA facility did not provide the requested service. The remaining question in the case is whether VA provided prior authorization for the Veteran's eight chiropractor visits on an outpatient basis for the time period from April 30, 2015 through January 4, 2016. The Board finds that there was not prior authorization for the Veteran's eight chiropractor visits from April 30, 2015 through January 4, 2016. The April 24, 2014 authorization reflects that the Veteran received authorization for 12 chiropractor visits from April 25, 2014 through April 24, 2015. The Veteran's Payment History records show that VA paid for 12 chiropractor visits during that time frame. The eight chiropractor visits at issue in this case all occurred after April 24, 2015, and after the 12 prior chiropractor visits, which were reimbursed by VA. The Veteran was notified of the authorization, including the period of authorization and number of visits in an attachment sent with the April 25, 2014 letter. In the April 25, 2014 letter, the Veteran was informed that if continued or additional services were needed, a new authorization for VA was required. The Veteran has not specifically asserted that he requested a new authorization for the visits from April 30, 2015 through January 4, 2016, prior to the visits. Although the Veteran was later approved for the VA Choice Program, the approval was in February 2016, after the treatment at issue. As noted above, the Veteran has also not asserted, and the evidence does not show, that the treatment was for emergency care. The Board has considered the Veteran's assertion that pre-authorization was not obtained due to a misunderstanding about the time frame for the visits and the transition to a new VA provider. However, the evidence in this case shows that the chiropractor visits at issue occurred after the authorized time period and after reimbursement of 12 visits, the amount authorized by VA. There is no evidence of a prior authorization for the chiropractor visits from April 30, 2015 through January 4, 2016. With the exception of emergency treatment, the admission of a Veteran to a non-VA hospital at VA expense needed to be authorized in advance, per 38 C.F.R. § 17.54. In conclusion, the Board finds that payment or reimbursement of private medical expenses provided at Van Chiropractic Clinic for the time period from April 30, 2015 through January 4, 2016 is not warranted under 38 U.S.C. § 1703(a) because the treatment was not authorized. The evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. E. BLOWERS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Marenna, 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.