Citation Nr: 0615036 Decision Date: 05/23/06 Archive Date: 06/02/06 DOCKET NO. 04-07 576A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Canandaigua, New York THE ISSUE Entitlement to authorization for the payment of medical expenses incurred at the Erie County Medical Center (ECMC) on January 16, 2004. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The veteran served on active duty from February 1968 to October 1972. This matter comes before the Board of Veterans' Appeals (Board) from a February 2004 decision by the Department of Veterans Affairs (VA) Medical Center (MC) to deny payment for the medical care received by the veteran at the ECMC on January 16, 2004. The veteran perfected an appeal of that decision. REMAND The veteran seeks payment of the medical expenses that he incurred at the ECMC on January 16, 2004. Specifically, he contends that because the arrangements for the treatment that he received were made by his VA physician, VA should assume responsibility for payment of the expenses he incurred. The medical evidence shows that in January 2004 the veteran was found to have a staghorn calculus in the right kidney. On January 9, 2004, his VA urologist requested authorization for a physician at the ECMC to place a nephrostomy tube in the right kidney within 72 hours. The nephrostomy tube was apparently needed in preparation for extracorporeal shock wave lithotripsy (ESWL) to remove the calculus. The urologist stated in his request that the required services were not available from VA, and that the "VA clinic" had recommended that non-VA facilities be used. The urologist also spoke with the VAMC financial office and was informed that the authorization would be faxed to the ECMC once approved. On January 12, 2004, the VAMC financial office asked the urologist whether the veteran would be endangered by travel, to which no response was received. On January 20, 2004, the financial office informed the requesting urologist that the co-signature of the supervising attending physician was required. No response was received, and the request for authorization was discontinued. On January 16, 2004, the veteran underwent the surgical placement of the nephrostomy tube at the ECMC with the understanding that the expenses would be paid by VA. On February 10, 2004, the VAMC received a billing from ECMC for the expenses incurred by the veteran on January 16, 2004. The VAMC denied the expenses on the basis that VA facilities were feasibly available to provide the care. Later in January 2004 the nephrostomy tube was removed by physicians at the VAMC, apparently because it was determined that ESWL would not be appropriate for removing the calculus and that surgical removal was required. The veteran subsequently underwent the surgical removal of the staghorn calculus in the right kidney at the VAMC. He was also found, however, to have additional calculi for which ESWL was required. His urologist on February 9, 2004, requested authorization for him to receive the ESWL at the ECMC on the basis that VA facilities were not available. The February 2004 request was initially denied on the basis that the VAMC in Syracuse could perform the ESWL. A February 9, 2004, addendum to the Progress Notes from the physician's assistant in the Urology Clinic indicates, however, that patients previously treated at Syracuse had not received proper care, and that for at least the previous two years the VAMC had referred all patients needing ESWL to the ECMC. In March 2004 the VAMC authorized the veteran's ESWL treatment at the ECMC for removal of the remaining calculi. When VA facilities are not capable of furnishing the care or services required, VA may contract with non-VA facilities for the required care. Care in public or private facilities may be authorized if the veteran meets the regulatory requirements for eligibility for such care or services. 38 C.F.R. § 17.52 (2005). The VAMC denied authorization for the veteran's January 2004 care at the ECMC on the basis that VA facilities were available. Based on the evidence indicating that the Urology Clinic had referred patients needing ESWL to the ECMC for the previous two years, and that the veteran's subsequent need for ESWL at the ECMC was authorized, it does not appear that VA facilities were available to provide the care he needed. It is not clear from the available evidence whether the veteran otherwise met the regulatory requirements for eligibility for care or services from a non-VA medical facility, or whether he has any service- connected disabilities. For these reasons the Board finds that remand of the case is required. Accordingly, the case is remanded for the following action: 1. After undertaking any development deemed appropriate, determine whether the veteran met the regulatory requirements for basic eligibility for care or services at a non-VA medical facility on January 16, 2004, in accordance with 38 C.F.R. § 17.52. If the veteran did not meet any of those requirements, provide him notice of the proper basis for denying authorization for the treatment received on January 16, 2004. 2. If the veteran met any of the regulatory requirements for such care, the proper medical authority at the VAMC should determine whether VA facilities were feasibly available to provide the care he needed on January 16, 2004. The physician should provide the rationale for that finding, including consideration of whether patients needing ESWL had previously received authorized treatment at a private facility. 3. If the benefit sought on appeal remains denied, provide the veteran a supplemental statement of the case. The case should then be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). ____________________________________________ N. W. Fabian Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2005).