Citation Nr: 0813224 Decision Date: 04/22/08 Archive Date: 05/01/08 DOCKET NO. 06-06 905A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Mare Island, California THE ISSUE Entitlement to payment for, or reimbursement of, unauthorized medical expenses, for treatment and hospitalization at Marshall Medical Center, Placerville, California, from January 8, 2005 through January 10, 2005. ATTORNEY FOR THE BOARD Michael A. Pappas, Counsel INTRODUCTION The veteran-appellant served on active duty from October 1979 to January 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2005 determination by the Department of Veterans Affairs (VA) Medical Center (VAMC) located in Mare Island, California, that denied the claim for reimbursement for, or payment of, unauthorized medical expenses, for treatment and hospitalization at Marshall Medical Center, Placerville, California, from January 8, 2005 through January 10, 2005, following emergency room treatment on January 8, 2005. The veteran perfected an appeal of that decision. The appeal is REMANDED to the VAMC via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND The veteran's claim was denied based upon a findings of the VAMC that the veteran had stabilized following the receipt of emergency room care at Marshall Medical Center, Placerville, California on January 8, 2005, and that a VA Medical Center was geographically and feasibly accessible such that the veteran could have been safely transferred by ambulance to the VA facility. The VAMC determined that since VA could have provided the necessary care to the veteran following the emergency room treatment, she should have been transported to a VA facility, but since she was not, she is not entitled to reimbursement for the unauthorized care she received at the private facility following the emergency room treatment. 38 U.S.C.A. §§ 1725, 1728 (West 2002); 38 C.F.R. §§ 17.120, 17.1000-.1008 (2007). The veteran asserts that following the emergency room treatment and prior to admission for in-patient care she "was sedated and had a tube (thoracotomy) sticking out of [her] chest." She argues that at that point she was unable to sign herself out of the "ER against medical advice," get into her vehicle, or transport herself to the VA hospital 40 miles away. Critical to the analysis of the veteran's claim is a review of the private medical treatment records for the treatment in question that the veteran received at Marshall Medical Center, Placerville, California, from January 8, 2005 through January 10, 2005. These treatment records are not in the medical reimbursement file. Further, the veteran's claims file could potentially contain evidence and information pertinent to the veteran's claim (including the foregoing Marshall Medical Center records), but it has not been associated with the medical reimbursement file. Although there is an indication that some attempt was made by the VAMC to obtain the veteran's claims file from the Oakland, California, Regional Office (RO), nothing was received from the RO in response to the request of the VAMC. It is further noted in the statement of the case that at least two VA clinicians have provided opinions indicating that VA medical facilities were feasibly available following the emergency room treatment. These medical opinions are also not associated with the medical reimbursement file. It is incumbent upon VA to assist the veteran in obtaining treatment records and medical evidence, the location of which has been specifically identified in order to fully determine not only the nature and etiology of any disability at issue, but in this case whether the veteran had stabilized at the private facility in question such that she could have been safely transferred to a VA facility. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159. Secondly, in her notice of disagreement filed in April 2005, the veteran requested that she be "scheduled for a personal hearing (if possible or . . . . before a Decision Review Officer) . . .." Although the veteran provided no indication on her substantive appeal as to whether she still desired a hearing, there is no indication that the veteran was provided a hearing before a hearing officer at the RO as she had earlier requested. Consequently, the veteran must be asked to clarify her intentions with respect to a hearing. Accordingly, the case is REMANDED for the following action: 1. Obtain the veteran's claims file from the Oakland, California, RO. If it is not available at that RO determine whether there are any other possible locations that could be searched. At the very least, obtain a statement from the Oakland, California, RO that a search has been conducted for the veteran's claims file. Associate the claims file with the medical reimbursement file. 2. After obtaining all necessary information, authorizations, and releases, obtain copies of all treatment records of the veteran's treatment and hospitalization received at Marshall Medical Center, Placerville, California, from January 8, 2005 through January 10, 2005. All records obtained should be associated with the claims file. 3. Obtain copies of any opinions provided by VA clinicians referenced in the July 2005 statement of the case on the matter of whether VA medical facilities were feasibly available following the emergency room treatment of the veteran at Marshall Medical Center. Associate these with the claims file. 4. Contact the veteran and provide to her a list of hearing options and ask her to clarify her intentions with respect to a hearing. If a hearing is requested, schedule one as soon as it may be feasible. 5. Thereafter, the VAMC should readjudicate the issue of entitlement to payment for, or reimbursement of, unauthorized medical expenses, for treatment and hospitalization received at Marshall Medical Center, Placerville, California, from January 8, 2005 through January 10, 2005. If the decision remains adverse to the veteran, she should be provided with a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include the applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. Thereafter, if a hearing has been requested, it should be conducted. Once the hearing has been conducted, or if no hearing has been requested, the case should be returned to the Board, if in order. No action is required of the veteran until she is notified by the VAMC. The appellant 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. 2007). _________________________________________________ M. E. LARKIN 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) (2007).