Citation Nr: A25041201 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 191114-410644 DATE: May 6, 2025 ORDER Entitlement to payment or reimbursement for non-Department of Veterans Affairs (VA) expenses incurred on April 11, 2018, subject to any regulatory limitations on payment, is granted. FINDING OF FACT On April 11, 2018, the Veteran obtained non-VA medical treatment, and the services were authorized by TriWest. CONCLUSION OF LAW The criteria for payment or reimbursement for non-VA treatment on April 11, 2018, have been met. 38 U.S.C. §§ 1703, 5107; 38 C.F.R. §§ 17. 52, 17.53, 17.54 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION Because of the limited information currently in the Veteran's claims file, his branch and exact dates of service are not known to the Board at this time. This matter comes before the Board of Veterans' Appeals (Board) from September 2019 and October 2019 letters of determination by Veterans Health Administration (VHA). In the November 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran 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. 38C.F.R. § 20.301. The Board acknowledges that correspondence was sent to the Veteran in April 2024 advising him it was unclear whether a valid Board appeal had been filed. However, upon further review of the evidence of record, the Board finds the appeal was appropriately filed and the Veteran's appeal will be adjudicated. The Veteran contends VA should pay or reimburse him for the non-VA medical expenses incurred on April 11, 2018 because he was in receipt of prior authorization for the non-VA medical services. The avenue of recovery of payment or reimbursement for the non-VA care for the episode of care at issue will be determined under 38 U.S.C. § 1703. Under 38 U.S.C. § 1703, when VA facilities or other government facilities are incapable of furnishing economical hospital care or medical services because of geographic inaccessibility or are incapable of furnishing care or services required, VA may contract with or authorize non-VA facilities for care. 38 U.S.C. § 1703 (a); 38 C.F.R. § 17.52 (a)(2006). However, hospital care in public or private facilities will only be authorized, whether under a contract or an individual authorization, under specified circumstances, including for treatment of: (i) service-connected disability; (ii) disability for which a Veteran was discharged or released from the active military, naval, or air service; (iii) disability of a Veteran who has a total disability permanent in nature from a service-connected disability; (iv) disability associated with and held to be aggravating a service-connected disability; or (v) disability of a Veteran participating in a rehabilitation program under 38 U.S.C. Chapter 31 and when there is a need for hospital care for reasons set forth in VA regulations. 38 C.F.R. § 17.52 (a)(1); 38 U.S.C. § 1703 (a)(1). In adjudicating a claim for reimbursement of medical expenses, VA must make a factual determination as to whether VA gave prior authorization for the non-VA medical care that the veteran received in a private facility. See 38 U.S.C. § 1703 (a); see also 38 C.F.R. § 17.54. This is a factual, not a medical, determination. Similes v. Brown, 6 Vet. App. 555 (1994). The Board notes that as of June 5, 2019, 38 C.F.R. § 17.54 has been superseded by regulations enacted pursuant to the VA Mission Act. See 38 C.F.R. § 17.4020. These new regulations may not be applied on a retroactive basis and as a result, are not relevant in this appeal. However, there is evidence of record that the AOJ adjudicated the claim under the Mission Act instead of under 38 U.S.C. § 1703 (2018), which was in effect for the episode of care on appeal. As such, the law in effect at the time of the episode of care was 38 U.S.C. § 1703 (2018), and the claim should have been evaluated under 38 U.S.C. § 1703 (2018). The evidence of record reflects the Veteran's claim for reimbursement was initially denied for no authorization. However, a September 2017 letter from TriWest advised the Veteran that authorization number 0004301417 was issued and valid for dates October 30, 2017, to April 28, 2018, under Veterans Choice Program. The Veteran advised he was instructed by his doctor to go to Kingman Regional Medical Center for x-rays of his left knee and chest and to obtain an EKG prior to his total knee replacement. He noted the TriWest authorization stated that they authorized routine x-rays, cardiology clearance testing, immunizations, and specific preventative care services when medical necessary for authorized care. The Veteran contends the non-VA services he underwent were in accordance with the TriWest authorization. The evidence of record reflects the AOJ advised the non-VA provider to submit the claims to TriWest and correspondence was sent to the Veteran notifying him to also submit the claim to TriWest. However, the letter incorrectly advised the Veteran this was through the Community Care Plan, which started with the Mission Act in 2019. The Veteran's claim is actually under the Veterans Choice Plan and the care was authorized per the September 28, 2017 correspondence listing the authorization number and applicable date range. It is unclear from the record whether the claim was ever submitted to TriWest and if the claim was processed. As such, the claim on appeal is granted subject to any regulatory limitations on payment. Therefore, as the evidence of record reflects an authorization was obtained and the episode of care falls within the covered dates in the authorization, entitlement to payment or reimbursement for non-VA expenses incurred on April 11, 2018, subject to any regulatory limitations on payment, is granted. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Mouzakis, 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.