Citation Nr: 0811415 Decision Date: 04/07/08 Archive Date: 04/23/08 DOCKET NO. 06-12 882 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Medical Center (MC) in Muskogee, Oklahoma THE ISSUE Entitlement to reimbursement or payment by VA of the cost of unauthorized private medical treatment received by the veteran from 28 February to 1 March 2005, at the St. John Medical Center in Tulsa, Oklahoma. ATTORNEY FOR THE BOARD J. Johnston, Counsel INTRODUCTION The veteran is reported to have had active military service from January 1964 to December 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from adverse determinations of the VAMC in Muskogee, Oklahoma, which initially denied the veteran's request for payment of the cost of unauthorized medical treatment he received from 22 February through 1 March 2005, but the VAMC apparently authorized payment for part of these medical expenses incurred from 22 through 27 February 2005. Because the record forwarded from the VAMC is entirely inadequate to perform an appellate review of the issue presented on appeal, this case must be REMANDED to the VAMC for additional evidentiary development. REMAND In accordance with the laws and regulations governing the function and jurisdiction of the Board, the Board is specifically required to issue decisions that are in writing, which set forth the issues(s) under appellate consideration, includes separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons and bases for those findings and conclusions. 38 U.S.C.A. § 7104(d) (West 2002); 38 C.F.R. § 19.7(b) (2007). First, although the issue stated in the VAMC folder is entitlement to payment or reimbursement for expenses incurred at the St. John Medical Center from 2 February to 1 March 2005, it is apparent from a review of the record that the VAMC received separate billings from Surgery, Inc., Tulsa Radiology, SE Radiology, Tulsa Regional Hospital, St. John's Medical Center, McAllister Regional Hospital, Oklahoma University Medical Center, MSA, Hartshorne EMS, and perhaps others. It is unclear exactly what medical expenses are at issue in this case It appears from the record that the veteran sustained an injury while horseback riding and presented for emergency treatment to the McAllister Regional Hospital, that he was transferred to the Tulsa Regional Hospital, and subsequently transferred to the St. John Medical Center for actual diagnostic testing and treatment. However, he was subsequently transferred to the Oklahoma University Medical Center for actual surgery. In addition to these four hospitals, the other claims apparently are made by emergency medical transport companies and radiological and diagnostic testing services. Although the claim is facially limited to only expenses incurred by the veteran at the St. John Medical Center, it is entirely unclear if this is in fact the veteran's claim. Additionally, although all medical expenses claimed were initially denied, the VAMC has reported that it did agree to pay expenses from 22 to either 26 or 27 February 2005, but it remains unclear whether payment was made to all medical expense claimants during this period, or only to expenses of the St. John's Medical Center. It will be necessary for VAMC personnel to clarify the claim at issue (with the veteran if necessary), and to give a clear explanation of what expenses have been paid (and are therefore no longer at issue) and what expenses have been refused (which remain at issue). Second, although the Statement of the Case issued to the veteran appears to include the relevant laws and regulations governing payment of unauthorized medical expenses under both 38 U.S.C.A. §§ 1728 and 1725, the discussion at page nine incorrectly lumps all of the prerequisites under each of these two separate means for adjudicating claims for unauthorized medical expenses, states that all prerequisites must be satisfied, and then denies any payment of expenses after either 26 or 27 February 2005, with no explanation whatsoever as to the reasons and bases for such decision, or any explanation as to whether this case was decided under 38 U.S.C.A. § § 1728 or 1725. The Board does find a clue in the Statement of the Case in that it provides that payment of some amount of the expenses was approved "until the veteran was stable for transfer," which leads the Board to believe that it made a decision to pay certain expenses based upon a medical judgment that the veteran's medical condition from 22 to 26/27 February met the regulatory requirements regarding emergency care, and a need to seek medical treatment immediately at risk of health or life. Of course, whether any veteran's medical condition was "emergent in nature" is a criteria for VA payment of unauthorized medical expenses under both 38 U.S.C.A. §§ 1728 and 1725. The denial of any further payment may have been made on the basis that the veteran was then considered stabilized, and treatment no longer being emergent in nature was no longer authorized for payment, but there is no clear explanation of this in the Statement of the Case, and there is no competent clinical opinion on file necessary to support such decision. The US Court of Appeals for Veteran's Claims (Court) has held many times that VA adjudication personnel may not substitute their own judgment in cases requiring a competent medical opinion. It appears from records on file that the veteran was requested to sign statements certifying his claim met all the preconditions for payment for emergency medical services under 38 C.F.R. § 17.1000 et. seq., which also leads the Board to surmise that the veteran's claim was in fact decided entirely under the Millenium Health Care Act at 38 U.S.C.A. § 1725 (but the Board cannot be sure of this). As noted in the Statement of the Case, the preconditions for payment of emergency medical care under the Millenium Health Care Act at 38 U.S.C.A. § 1725 as implemented at 38 C.F.R. § 17.1002, includes nine preconditions (from a to i) and the Board is unable to determine whether the VAMC did or did not find that the veteran satisfied any of these preconditions, or whether it determined that all of these preconditions were satisfied, except the emergent nature of medical care provided after 27 or 28 February 2005. An adequate adjudication of the veteran's claim must clearly indicate whether the claim is being adjudicated under 38 U.S.C.A. § 1728 or § 1725, or both (if both, they must be analyzed/discussed separately). Further, an adequate adjudication of the veteran's claim should address each precondition for entitlement under each section separately. Under the Millenium Health Care Act, there is certainly insufficient evidence in the medical expense folder for the Board to make an independent determination as to whether the veteran was enrolled in the VA Health Care System and had received medical services within the 24-month period preceding the emergency treatment, and whether the veteran has no alternate health care coverage in whole or in part for the emergency treatment at issue, and whether the veteran is not in fact eligible for reimbursement under 38 U.S.C.A. § 1728. Additionally, no claim for payment or reimbursement of unauthorized medical expenses should be forwarded to the Board on appeal without the veteran's Regional Office (RO) maintained claims folder. The Board can make no independent determination with respect to qualifying military service and veteran's status, or whether (under 38 U.S.C.A. § 1728) the emergent care at issue was for an adjudicated service- connected disability, or for a nonservcice-connected disability associated with and held to be aggravating an adjudicated service-connected disability, or whether the veteran has a total disability permanent in nature resulting from a service-connected disability. There is at present conflicting information in the medical expense folder as to what service-connected disabilities the veteran may have. At present, it appears to the Board that the VAMC found that 38 U.S.C.A. § 1728 provided no basis for payment of the veteran's claimed private medical expenses. It appears that the veteran's claim was adjudicated under 38 U.S.C.A. § 1725, and that the essential question presented was a combination of the Millenium Health Care factors at 38 U.S.C.A. § 17.102 (a), (b), (c), and (d). That is, were all services provided in a hospital emergency department, was the nature of the veteran's injuries (from the subjective viewpoint of a lay person) indicative that delay in seeking immediate medical attention might have been hazardous to life or health, were VA or other Federal facilities not feasibly available, and to the extent the claim extends beyond initial emergency treatment for continued medical care (as seems to be the case in this appeal), was there a continued medical emergency that the veteran could not have been safely discharged and transferred to a VA facility. The veteran in this case has argued in several written statements that there was no room available to him in any VA facility, nor was a surgeon available to do the particular surgery necessary. The only evidence presently on file against the veteran's allegations is a conclusory statement in the Statement of the Case that "the claim was approved until the veteran was stable for transfer - February 27, 2005." The VAMC should understand that the burden of proof in all veterans' appeals is only an equipoise of evidence. At present, all there is on file is the veteran's statement that facilities and/or a surgeon were not available, and a statement of VAMC adjudication personnel that they were available. This would generally be viewed as an equipoise of evidence requiring an allowance of the benefits sought. Accordingly, on remand, the medical expense folder must be referred to a competent medical doctor for review and the production of a statement which discusses the facts in this case, and which provides an opinion that addresses 38 C.F.R. § 17.102 (a) through (d), both in terms of the relative emergent nature of the veteran's continuing private health care, but which also must address feasible availability of both a bed and surgeon in VA facilities. If there comes a time when treatment is no longer emergent in nature, then availability of VA facilities may not be relevant. This is the type of evidence the Board must have in order to render an appellate decision which includes adequate reasons and bases if any part of the veteran's claim is to be denied. In this regard, it might also be useful if any VA administrative personnel familiar with this case would be able to review the record and provide a statement that reflects conversations that may have been held between the veteran and/or his family members, and VAMC personnel regarding availability of a bed and surgeon. Additionally, the Board would point out that any veteran- appellant will be accorded full right to representation in all stages of an appeal by any recognized, attorney, agent or other authorized person. 38 C.F.R. § 20.600 (2007). Without the claims folder, the Board is unable to determine whether the veteran has a standing power of attorney granting representation status to any Veteran Service Organization or other authorized person. If the veteran has an appointed representative, there is no indication in the medical expense folder that the representative has been offered the opportunity of assisting the veteran at any stage in his appeal up until present. Generally speaking, both a veteran and representative are to be provided with Statements of the Case. The veteran is hereby notified that he will be offered the opportunity of submitting additional evidence in support of his claim when it is remanded to the VAMC. The Board notes the veteran has written several times the brief sequence of his medical treatment and transfers from McAllister to Tulsa Regional, to St. John's, and to Oklahoma University. The veteran's attention is directed to the nine preconditions for payment of his claim listed at 38 C.F.R. § 17.1002 (a) through (i). He is invited to submit a detailed written statement as to why he believes that he qualifies for payment of any remaining expenses after those already paid by the VAMC during the pendency of this appeal. In additional to technical qualifications regarding alternate health care coverage, he is invited to focus this statement on the aspects of the emergent nature of his injuries, of his specific contacts with VA, and/or VAMC personnel, and any refusals of such personnel to provide a room, care, treatment or an appropriate surgeon. The veteran has reported on more than one occasion that his allegations can be corroborated by the "head surgeon" and a "social worker" at St. John's Medical Center. The veteran is invited to obtain written statements from these or any other individuals in corroboration of his own reported facts. Again, the focus of the inquiry should be directed to expenses that have not already been paid by the VAMC. VA has already acknowledged that the veteran met the requirements for payment of expenses from 22 to 26/27 February, 2005, and no argument or evidence is necessary with respect to those expenses already authorized for payment. For these reasons, the claim is REMANDED to the VAMC for the following action: 1. Initially, VAMC adjudication personnel must prepare a letter for the veteran which provides a detailed explanation as to what expenses have been paid on his behalf, and what expenses have been denied, and the reasons for both the partial allowance and remaining denial of the expenses at issue. Additionally, the veteran must be informed that his appeal has been remanded to a VAMC for additional evidentiary development, and that he is invited to submit any evidence, information, or statements that he may have on his behalf, including any statements of witnesses with knowledge with respect to the emergent nature of his injuries, treatment provided therefor, history of personal contacts with VA facilities, availability of VA facilities and beds, and availability of necessary VA surgeons. VAMC personnel will also include a copy of 38 C.F.R. § 17.1002 (a) through (i) to the veteran as an attachment to this letter. He must be provided a reasonable amount of time to respond (at least 60 days), and any evidence or information provided by or on behalf of the veteran must be added to the medical expense folder. Copies of VAMC notice letter(s) to the veteran must also be added to the medical expense folder. 2. The RO should review the evidence on file to ensure that it has obtained all relevant medical records and evidence necessary for a decision in this case. Any records outstanding should be collected and added to the medical expense folder. The RO must also discover whether the veteran has an appointed representative with VA, and if so, ensure that the veteran is accorded the right to representational assistance, in pursuing his appeal. 3. After completing the above development, VAMC personnel must refer the medical expense folder, including any evidence obtained from or on behalf of the veteran and by VAMC adjudication personnel, to a medical doctor for review and the issuance of a statement which discusses the facts presented in this appeal, and how he believes these facts apply to the governing regulation at 38 C.F.R. § 17.1002. The principal focus of this statement must include discussion of the relative emergent nature of the veteran's injuries (remembering that the controlling regulation is subjective from a veteran's viewpoint), a discussion of the multiple transfers the veteran underwent, a discussion of the veteran's allegations with respect to being refused a bed or surgeon, and a discussion of when, if ever, it appears that the veteran's physical condition may have been stabilized sufficiently that any further treatment may not be considered emergent in nature. In discussing the potential availability of VA facilities, the doctor is requested to address contentions submitted by the veteran or any witness statements he may submit. Finally, although not presently discussed as an issue, to the extent that travel distances from the point of injury or point of subsequent treatment to VAMC does present an issue with respect to whether or not the veteran could be safely transferred to VA at some point in time, the relative distances involved should be identified and additionally discussed. 4. After completing the above development, VAMC adjudication personnel should again address the veteran's claim for payment of private emergency care treatment in accordance with the governing laws and regulations. Any adjudications under 38 U.S.C.A. § 1728 and § 1725 must be entirely separate, as these are entirely different regulatory schemes. If the decision remains adverse in any way to the veteran's claim, he must be provided with a Supplemental Statement of the Case which includes a discussion of the issues raised in this remand and a discussion of the facts as they relate to the governing laws and regulations regarding payment of unauthorized medical expenses. The case should then be returned to the Board after compliance with appellate procedures. If the case is returned to the Board, VAMC personnel must ensure that they obtain the veteran's claims folder from the supervising regional office (Muskogee) and return it to the Board together with the medical expense folder for Board review. The veteran need do nothing until further notified. The appellant has the right to submit additional evidence and argument on the matter or matters 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 The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). _________________________________________________ F. JUDGE FLOWERS 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) (2004).