Citation Nr: 1120144 Decision Date: 05/24/11 Archive Date: 06/06/11 DOCKET NO. 07-01 412 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Ann Arbor, Michigan THE ISSUE Entitlement to reimbursement or payment of unauthorized medical expenses incurred on October 18, 2005 at St. Luke's Hospital. REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD K. K. Buckley, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from September 1969 to February 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision issued in July 2006 by the Department of Veterans Affairs (VA) Medical Center in Ann Arbor, Michigan, which denied the Veteran's claim. In his December 2006 substantive appeal (VA Form 9), the Veteran requested a personal hearing before a Veterans Law Judge. In April 2008, said hearing was scheduled via videoconference; however, the Veteran failed to report. As no further communication from the Veteran with regard to a hearing has been received, the Board considers his request for a hearing to be withdrawn. See 38 C.F.R. §§ 20.702(d), (e); 20.704(d), (e) (2010). In an August 2009 Board decision, the claim was remanded for further evidentiary development. The VA Ann Arbor Healthcare System continued the previous denial in an August 2009 supplemental statement of the case (SSOC) with subsequent memo dated August 2010. The Veteran's VA claims folder has been returned to the Board for further appellate proceedings. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND After having carefully considered the matter, and for reasons expressed immediately below, the Board finds that the Veteran's claim on appeal must be remanded for further development. The Board is cognizant of the fact that the Veteran's case has been in adjudicative status for several years and it has been subject to a previous remand. Consequently, the Board wishes to assure the Veteran that it would not be remanding this case again unless it was essential for a full and fair adjudication of his claim. The August 2009 Board remand instructed the RO/AMC to attempt to obtain "all VA records relevant to the Veteran's October 18, 2005 telephone consultation with the VA Medical Center in Ann Abor, including any notes, memorandum, and/or transcript of that call." The RO/AMC was also to attempt to obtain "all VA records relevant to whether VA paid any of the Veteran's other medical bills associated with his October 18, 2005 ER treatment at St. Luke's Hospital, including the doctor and hospitalization bills and, if so, the reason why these other ER bills were paid." In a supplemental decisional letter dated shortly after the Board remand, the Fee Basis supervisor issued a decision upholding his previous decision. A review of the decision indicates that the supervisor reviewed medical records from St. Luke's Hopstial and MAA LOG records, in addition to Fee Basis Vista records. No such records are contained in the claims folder. One year later, in an April 2010 letter, the RO informed the Veteran that in accordance with the Board's Remand instructions, attempts were being made to obtain the requisite telephone and VAMC records. Contemporaneously, in April 2010, the RO sent a letter to the Ann Arbor VAMC requesting the records specified in the Board Remand. Neither the records, nor a negative response from the VAMC are contained in the claims folder. Moreover, a review of the record currently before the Board indicates that the Veteran's MAS file is not associated in the Veteran's claims folders. Consequently, as the Veteran's representative noted in the March 2011 Informal Hearing Presentation, numerous records including all medical records from St. Luke's Hopsital dated in October 2005, the December 2006 VA Form 9, and the July 2006 rating decision are not contained in the record. Accordingly, the Veteran's complete MAS file must be obtained. In Stegall v. West, 11 Vet. App. 268, 271 (1998) the United States Court of Appeals for Veterans Claims held that compliance with remand instructions is neither optional nor discretionary. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Because the Board's remand instructions have not been complied with, the case must be remanded so that this may be accomplished. Accordingly, the case is REMANDED for the following action: 1. The Ann Arbor VAMC should ensure that the Veteran's complete MAS file is obtained and associated with the Veteran's claims folders. 2. The VAMC should request that the Veteran identify any additional records concerning his private medical treatment at St. Luke's Hopsital in October 2005, that may not already be associated with the claims folder. The Veteran should provide all necessary written releases for these records. If any of the identified records cannot be obtained, the VAMC should notify the Veteran of such and describe the efforts used in requesting these records. 3. The VAMC should obtain all VA records relevant to the Veteran's October 18, 2005 telephone consultation with the VAMC in Ann Arbor, including any notes, memoranda, and/or transcripts of that call. Efforts to obtain the requested records should be thoroughly documented and ended only if it is concluded that the records sought do not exist or that further efforts to obtain those records would be futile. Because these are Federal records, if said records cannot be located or no such records exist, the Veteran should be notified in writing. All actions to obtain the requested records should be fully documented in the claims folder. 4. The VAMC should also obtain all VA records relevant to whether VA paid any of the Veteran's other medical bills associated with his October 18, 2005 ER treatment at Saint Luke's Hospital, including but not limited to the doctor and hospitalization bills. If any such payments were made, VAMC should be asked to specify why these other ER bills were paid. Efforts to obtain the requested records should be thoroughly documented and ended only if it is concluded that the records sought do not exist or that further efforts to obtain those records would be futile. Because these are Federal records, if said records cannot be located or no such records exist, the Veteran should be notified in writing. All actions to obtain the requested records should be fully documented in the claims folder. 5. The VAMC should also print out and associate with the claims folder any electronic records including the MAA Log and/or Fee Basis Vista records upon which it has relied in determining the outcome of the Veteran's current claim. 6. Following any further development that the VAMC deems necessary, the Veteran's claim should then be readjudicated. If the benefits sought on appeal remain denied, the VAMC should provide the Veteran with a supplemental statement of the case and allow an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See 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. 2010). _________________________________________________ NEIL T. WERNER 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) (2010).