Citation Nr: 1035005	
Decision Date: 09/16/10    Archive Date: 09/21/10

DOCKET NO.  07-10 118A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Roseburg, Oregon


THE ISSUE

Entitlement to reimbursement for, or payment of, unauthorized 
medical expenses for right ankle surgery on August 8, 2006, from 
Oregon Surgery Center.


REPRESENTATION

Appellant represented by:	Mary Anne Royle, Attorney


ATTORNEY FOR THE BOARD

M. G. Mazzucchelli, Counsel


INTRODUCTION

The Veteran served on active duty from June 1972 to June 1979.

This matter originally came before the Board of Veterans' Appeals 
(Board) on appeal of an August 2006 determination made by the 
Department of Veterans Affairs (VA) Medical Center (VAMC) located 
in Roseburg, Oregon, that denied the Veteran's claim for 
reimbursement for, or payment of, unauthorized medical expenses 
for right ankle surgery on August 8, 2006, from Oregon Surgery 
Center.

In a January 2009 decision, the Board denied the Veteran's claim.  
The Veteran appealed the Board's decision to the Court, resulting 
in a March 2010 joint motion by the parties (Joint Motion).  By a 
March 2010 Order, the Court remanded the case for compliance with 
the instructions in the Joint Motion.

The appeal is REMANDED to the Department of Veterans Affairs 
Regional Office.  VA will notify the appellant if further action 
is required.


REMAND

The Joint Motion found that the Board's January 2009 decision 
failed to provide adequate reasons and bases for its conclusions 
that the Veteran's condition was not emergent in nature and that 
a federal facility was available to provide the Veteran 
orthopedic surgical treatment.  The Board finds that it is 
necessary to obtain a medical opinion from a physician who will 
review the record and address these issues.

The Joint Motion also noted that the January 2007 statement of 
the case was inadequate in that it did not provide the Veteran 
with adequate notice with regard to relevant laws and regulations 
that could affect his claim.  Specifically, it failed to cite 
38 U.S.C.A. § 1725.  Thus, on remand, the supplemental statement 
of the case must include citation to 38 U.S.C.A. § 1725.

Accordingly, the case is REMANDED for the following action:

1.  Obtain a medical opinion addressing the 
questions of whether the Veteran's right 
ankle condition on August 8, 2006, was 
emergent in nature and whether orthopedic 
surgery was available at the VAMC in 
Roseburg, Oregon, at that time.  The 
reviewing physician should explain the 
reasons for the conclusions reached.

2.  After completion of the above, review the 
expanded record and determine if the claim 
can be granted.  If the claim remains denied, 
issue a Supplemental Statement of the Case 
(SSOC) that includes specific citation to 
38 U.S.C.A. § 1725 and afford the appellant 
and his attorney an opportunity to respond.  
Thereafter, the case should be returned to 
the Board for appellate review.

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. 2009).



_________________________________________________
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) (2009).