Citation Nr: 1127660 Decision Date: 07/25/11 Archive Date: 08/02/11 DOCKET NO. 10-08 199A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Gainesville, Florida THE ISSUE Entitlement to reimbursement of unauthorized medical expenses incurred on August 11, 2009, while hospitalized at Ocala Regional Medical Center. ATTORNEY FOR THE BOARD William J. Jefferson III, Counsel INTRODUCTION The Veteran served on active duty in the military from February 1943 to November 1945 and from March 1949 to September 1951. The Veteran died in October 2009, and his son appears to be the Appellant. This appeal to the Board of Veterans' Appeals (Board) is from September 2009 decisions by the Department of Veterans Affairs Medical Center (VAMC) in Gainesville, Florida. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Appellant if further action is required. REMAND The Appellant in this case at present appears to be the deceased Veteran's son who is claiming reimbursement of unauthorized medical expenses for emergency treatment the Veteran received prior to his death. However, it is also noted that a billing representative from Ocala Regional Medical Center filed the original claim for reimbursement in August 2009. According to VA administrative records and information from the Appellant, the Veteran died in October 2009 during the course of the appeal. On August 11, 2009, the Veteran incurred private medical expenses for emergency room treatment that he received at the Ocala Regional Medical Center. An August 2009 medical statement from the facility shows that the Veteran presented on August 11, 2009 with constipation complaints of one week duration. The differential diagnoses were constipation, electrolyte abnormality, and dehydration. The Veteran was apparently released from the facility the same day. According to a November 2009 bill of services directed to the Veteran from the Ocala Regional Medical Center the Veteran incurred charges in the total amount of $1,533.18, for laboratory, X-ray, and emergency room expenses. In September 2009, VA denied claims from the private medical providers associated with the facility for service that was provided on August 11, 2009. It was determined that the Veteran's care on that date was non-emergent. In January 2010, subsequent to the Veteran's death in October 2009, the Veteran's son submitted a statement indicating that while cleaning out documents of the Veteran, he found a bill from the Ocala Regional Medical Center apparently regarding the August 11, 2009 treatment he had received at the facility. When, as here, a Veteran receives treatment at a non-VA facility without prior authorization, there are two statutes that allow for payment or reimbursement for the medical expenses incurred for that treatment: 38 U.S.C.A. § 1728 and 38 U.S.C.A. § 1725. Prior to any determination on the merits of the claim, a threshold question that has not been determined is the Appellant's standing in the matter. In fact, it is unclear who the proper appellant in this case is. A claimant for payment or reimbursement under either 38 U.S.C.A. §§ 1725 or 1728 provides payment be made to must be the entity that furnished the treatment, the Veteran who paid for the treatment, or the person or organization that paid for such treatment on behalf of the Veteran. See also 38 C.F.R. §§ 17.123, 17.1004(a) (2010). As a result, while the current Appellant is a potential claimant for reimbursement of unauthorized medical expenses, his standing in the matter has not been determined since it is unclear whether he actually paid for the August 11, 2009 medical treatment for his now deceased father. Simply stated, if the Veteran's son paid the outstanding medical bills to the provider, he is the proper appellant. However, if the Ocala Regional Medical Center has never received payment from the Veteran's son, then that entity is the proper appellant. See 38 C.F.R. §§ 17.123, 17.1004(a) (2010). It is noted that none of the medical bills or records associated with the Veteran's medical care on August 11, 2009 from Ocala Regional Medical Center or their associates in the file are marked paid or satisfied. The Veteran's correspondence on the matter, namely in his January 2010 statement/notice of disagreement or in the March 2010 substantive appeal, do not reference any payment of the August 11, 2009 bill. On a side note, the Board emphasizes that in a recent conclusory, and hence non-precedential, opinion VA's General Counsel held that the decedent's estate itself would not have legal standing to pursue a pending claim or appeal for payment or reimbursement of unauthorized medical expenses in the event of the death of a claimant, and no substitutions or new claims should be permitted. See VAOPGCCONCL 1-2007 (Oct. 29, 2007). In summary, first, prior to any adjudication of the merits of this appeal, the threshold matter that must be addressed by the VAMC is what appellant, the Veteran's son or the medical provider, has proper standing to proceed in this case. This issue falls on whether the Veteran's son paid the August 11, 2009 hospital bill. See 38 U.S.C.A. §§ 1725, 1728; 38 C.F.R. §§ 17.123, 17.1004(a). Second, the Board acknowledges that effective October 10, 2008, the provisions of 38 U.S.C.A. § 1725 and § 1728 were amended. See Veterans' Mental Health and Other Care Improvements Act of 2008, Pub. L. No. 110-387, § 402, 122 Stat. 4110 (2008). The changes are liberalizing in that they make reimbursement for medical expenses mandatory instead of discretionary, as well as expand the definition of "emergency treatment" beyond the point of stabilization. Also, the changes apply the more liberal prudent layperson standard for determining whether an actual medical emergency existed under either 38 U.S.C.A. § 1725 and § 1728. In the present case, the Board will consider and apply the amended versions of 38 U.S.C.A. § 1725 and § 1728, since the Veteran's hospitalization occurred on August 11, 2009, subsequent to the October 2008 effective date of the amendments. However, pertinent VA regulations provide that a Statement of the Case (SOC) issued to an appellant must be complete enough to allow the appellant to present his or her argument before the Board and must contain a summary of the applicable laws and regulations, with appropriate citations, and a discussion of how such laws and regulations affect the determination. 38 U.S.C.A. § 7105(d) (West 2002); 38 C.F.R. § 19.29 (2010). As relevant to this particular matter, the February 2010 SOC failed to address the pertinent laws in the present case - the amended / revised provisions of 38 U.S.C.A. § 1725 and § 1728 (effective October 2008). See Veterans' Mental Health and Other Care Improvements Act of 2008, Pub. L. No. 110-387, § 402, 122 Stat. 4110 (2008). To ensure due process, on remand, the VAMC should issue a Supplemental Statement of the Case (SSOC) that includes adjudication of the claim under the correct amended laws. Accordingly, the case is REMANDED to the VAMC for the following action: 1. Contact the Appellant, the deceased Veteran's son, and request that he submit proof of payment he made for the August 11, 2009 medical treatment the Veteran received at the Ocala Regional Medical Center. Simply stated, if the deceased Veteran's son paid the outstanding medical bills, he is the proper appellant. However, if the Ocala Regional Medical Center has never received payment from the Veteran's son, then that entity is the proper appellant. See 38 C.F.R. §§ 17.123, 17.1004(a) (2010). 2. The VAMC should then make a finding as to who is the proper appellant in the present case - the Veteran's son or the Ocala Regional Medical Center. 3. Following completion of the above, readjudicate the unauthorized medical expenses claim on appeal. If the claim is not granted, provide the Appellant with a 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 on appeal as well as a summary of the evidence of record. This SSOC should include readjudication under the amended provisions of 38 U.S.C.A. § 1725 and § 1728 (effective October 2008) and any applicable regulations. See Veterans' Mental Health and Other Care Improvements Act of 2008, Pub. L. No. 110-387, § 402, 122 Stat. 4110 (2008). Please be aware that under the new law effective October 10, 2008, the more liberal prudent layperson standard applies for determining whether an actual medical emergency existed. An appropriate period of time should be allowed for response before the case is returned to the Board. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ PAUL S. RUBIN 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).