Citation Nr: 1007019 Decision Date: 02/25/10 Archive Date: 03/05/10 DOCKET NO. 07-20 864A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Medical Center (MC) in Salem, Virginia THE ISSUE Entitlement to payment or reimbursement of expenses incurred for medical services provided in connection with the Veteran's care at Twin County Regional Hospital (TCRH) and Wake Forest Baptist Medical Center (WFUBMC), to include necessary ambulance transfers in January 2007. ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The Veteran served on active duty from June 1943 to January 1946. He died in January 2007. The appellant is his widow and is taken as being responsible for unpaid medical expenses at issue. This matter comes to the Board of Veterans' Appeals (Board) on appeal from decisions by the VAMC in Salem, Virginia, that denied the appellant's claim for payment or reimbursement of medical expenses under the provisions of 38 U.S.C.A. § 1725. The VAMC has heretofore limited its analysis of the appellant's claim to the matter of her entitlement to payment or reimbursement of expenses incurred at TCRH on January 1 and 9, 2007. However, it appears from the appellant's notice of disagreement and substantive appeal that she is also seeking payment or reimbursement of expenses incurred at WFUBMC from January 1 to January 3, 2007, and January 9 and 10, 2007; for further expenses incurred at TCRH from January 10 to January 13, 2007; and for expenses incurred in connection with ambulance transfers between those two facilities on January 1, 9, and 10, 2007. Accordingly, and for purposes of clarity, the Board has recharacterized the matter on appeal as set forth above, on the title page. In September 2009, the appellant was notified of the time and place of a Board hearing she had requested in connection with the present appeal. See 38 C.F.R. § 20.702(b). She failed to appear, however, and no motion for rescheduling has been received. Accordingly, the Board will process her appeal as though the request for hearing has been withdrawn. 38 C.F.R. § 20.702(d). For the reasons set forth below, this appeal is being REMANDED to the VAMC for additional development. VA will notify the appellant if further action is required on her part. REMAND The VAMC denied the appellant's claim on grounds that the Veteran had some degree of insurance coverage for the expenses here in question (specifically, under Medicare parts A and B). See 38 U.S.C.A. § 1725(b)(3)(C) (West 2002 & Supp. 2009); 38 C.F.R. § 17.1001(a), 17.1002(g) (2009). On February 1, 2010-after the appellant's appeal was certified and transferred to the Board-the President signed into law the Veterans' Emergency Care Fairness Act of 2009, Pub. L. 111-137, 123 Stat. 3495 (2010). The new law removes and amends provisions in the prior version of 38 U.S.C.A. § 1725 that prohibited payment or reimbursement of emergency medical expenses on behalf of veterans who had insurance, and allows for payment or reimbursement of expenses incurred before the date of the law's enactment under appropriate circumstances. Id. These provisions appear to have some potential retroactive application to claims filed before that date. Id. The appellant has not had an opportunity to prosecute her claim in the context of the new law. Accordingly, in order to ensure her full due process of law, and to avoid the possibility of prejudice, the Board will return the case to the VAMC for further development and readjudication. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 393 (1993). On remand, the VAMC should issue the appellant another notice letter under the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009)), inasmuch as the only such letter thus far provided (in April 2007) does not contain notice of the information and evidence necessary to substantiate her claim, as required by law. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009). The VAMC should also undertake development to obtain evidence of the appellant's relationship to the Veteran, to procure complete medical records of pertaining to each of the episodes of treatment here in question, and to determine whether and to what extent the appellant has remaining financial obligations related to the services here at issue. 38 C.F.R. § 19.9 (2009). That is, a determination should be made as to the remaining debt, if any, unpaid by Medicare Parts A and B. For the reasons stated, this case is REMANDED for the following actions: 1. Send a new VCAA notice letter to the appellant and her representative relative to the issues here on appeal. Among other things, the letter should inform the appellant of the information and evidence generally required to substantiate a claim for payment or reimbursement of medical expenses under 38 U.S.C.A. § 1725. The letter should also inform the appellant that she needs to submit proof of her marriage to Veteran, as set out in 38 C.F.R. § 3.205. The appellant and her representative should be given a reasonable opportunity to respond to the notice, and any new or additional (i.e., non-duplicative) evidence received should be associated with the record on appeal. 2. Ask the appellant to complete and submit releases for any and all records pertaining to the Veteran's treatment at TCRH on January 1, 9, 10, 11, 12, and 13, 2007; his treatment at WFUBMC on January 1, 2, 3, 9, and 10, 2007; and his ambulance transfers on January 1, 9, and 10, 2007. If she provides the releases, assist her in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record on appeal. 3. Ask the appellant to submit copies of any billing statements she has in her possession that pertain to the services here in question. This should include any remaining debt to these facilities after Medicare payments are made. After that evidence has been received, conduct a review to determine whether and to what extent she has remaining financial obligations related to the services here in question, taking into account the provisions of 17.1005. 4. After all of the foregoing development has been completed, take adjudicatory action on the appellant's claim, taking into account the amended provisions of 38 U.S.C.A. § 1725 and any regulations promulgated pursuant thereto to include any retroactive application that may apply. If any benefit sought remains denied, furnish a supplemental statement of the case (SSOC) to the appellant and her representative. The SSOC should contain, among other things, a citation to, and summary of, the current versions of 38 U.S.C.A. § 1725 and 38 C.F.R. § 17.1001, 17.1002, 17.1003, and 17.1005. After the appellant and her representative have been given an opportunity to respond to the SSOC, the Veteran's claims file and Combined Health Record should be returned to this Board for further appellate review. No action is required by the appellant until she receives further notice, but she may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). The purposes of this remand are to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. This matter must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of this appeal. 38 C.F.R. § 20.1100(b) (2009).