Citation Nr: 1217331 Decision Date: 05/15/12 Archive Date: 05/24/12 DOCKET NO. 10-22 463A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Illiana Health Care System THE ISSUE Entitlement to payment of or reimbursement for the cost of unauthorized medical expenses incurred between January 29, 2010 and February 16, 2010 at St. Mary's Hospital and associated ancillary charges. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD A. M. Clark, Counsel INTRODUCTION The Veteran served on active duty from September 1973 to July 1977. These matters come before the Board of Veterans' Appeals (BVA or Board) from March 2010 and April 2010 determinations of the VA Medical Center (VAMC) in Danville, Illinois. The Veteran testified before the undersigned Veterans Law Judge in September 2011. A copy of the transcript is of record. 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 Payment by VA for services rendered for a nonservice-connected condition in a non-VA facility under 38 U.S.C.A. § 1725 (West 2002) and 38 C.F.R. §§ 17.1000-1008 sought by the Veteran. To be eligible for payment under these provisions, the treatment must establish, in pertinent part, that the emergency services were provided in a hospital emergency department or a similar facility providing emergency care; a prudent layperson would have reasonably expected that delay in seeking immediate medical attention for the initial evaluation and treatment would have been hazardous to life or health; a VA or other Federal facility was not feasibly available and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson; and that the care beyond the initial emergency evaluation and treatment was for a continued medical emergency of such a nature that the Veteran could not have been safely discharged or transferred to a VA or other Federal facility, with the medical emergency lasting only until stabilization of the Veteran. Parenthetically, as the Veteran is not service-connected for any disability, only 38 U.S.C.A. § 1725 applies. Veteran's with service-connected disabilities are eligible for consideration under 38 U.S.C.A. § 1728. Effective October 10, 2008, the provisions of 38 U.S.C.A. § 1725 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. The changes also apply the more liberal prudent layperson standard for determining whether an actual medical emergency existed under 38 U.S.C.A. §. Effective January 20, 2012, VA amended its regulations concerning reimbursement for emergency hospital care and medical services provided to eligible veterans for service-connected and nonservice-connected conditions at non-VA facilities. The purpose of these amendments is to implement provisions from § 402 of the Veterans' Mental Health and Other Care Improvements Act of 2008 (the Act), Public Law No. 110-387, 122 Stat. 4110, which revised 38 U.S.C. §§ 1725 and 1728. These provisions appear to have some potential retroactive application to claims filed before that date. Id. The Veteran sought treatment at a private facility on several occasions (a) on January 29, 2010 for an ultrasound of the renal arteries (b) on February 2, 2010 for a cardiovascular consultation, stress test (c) on February 3, 2010 for blood work (d) on February 9-10, 2010 for a 48 hour Holter monitor study (e) on February 11, 2010 for an ultrasound of the carotids (f) and on February 16, 2010 for a cardiac catheterization. The Veteran contends that his outpatient treatment were rendered in a 'medical emergency' of such a nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. He essentially asserts that treatment for his heart condition was 'urgent' and although he tried to obtain treatment from the VA, the wait time for an appointment was too long. The Veteran testified at his September 2011 BVA Hearing that he had gone to the emergency room on January 23, 2010 with symptoms of a heart attack. This treatment was subsequently approved by the VA. The Veteran stated that he subsequently contacted the VA to try and get a follow-up appointment. However, as the wait time was too long, he said visited his private treating physician, who was expressed a profound concern for his health and set him up with further testing. The Veteran now wants the follow-up testing covered by the VA as the testing ended up revealing a 100 percent stenosis of the right coronary artery. Upon review of the laws and evidence, however, the Board finds that additional development of the evidence is required. First, a determination needs to be made as to whether or not VA or other Federal facility/provider was feasibly available for the testing. Second, if such a facility was available, would an attempt to use them beforehand been considered reasonable by a prudent layperson for any of the Veteran's Non-VA outpatient treatment visits between January 29, 2010 and February 16, 2010. Accordingly, the case is REMANDED for the following actions: 1. A medical opinion should be requested. The examiner should review the claims file, including the medical records and the Veteran's assertions. He or she should then provide opinions to the following questions: (a) Were VA facilities feasibly available on January 29, 2010, and would an attempt to use them beforehand have been reasonable by a prudent layperson? (b) Were VA facilities feasibly available on February 2, 2010, and would an attempt to use them beforehand have been reasonable by a prudent layperson? (c) Were VA facilities feasibly available on February 3, 2010, and would an attempt to use them beforehand have been reasonable by a prudent layperson? (d) Were VA facilities feasibly available on February 9-10, 2010, and would an attempt to use them beforehand have been reasonable by a prudent layperson? (e) Were VA facilities feasibly available on February 11, 2010, and would an attempt to use them beforehand have been reasonable by a prudent layperson? (f) Were VA facilities feasibly available on February 16, 2010, and would an attempt to use them beforehand have been reasonable by a prudent layperson? In addressing these questions, the examiner may consider such factors as whether the VA facility had available room, the relative distance involved in obtaining VA and private treatment, the urgency of the Veteran's medical condition, the nature of treatment (including the complexity of the surgery) making it necessary or economically advisable to use non-VA facilities, or if the Veteran was not responsible for going to the non-VA facility. The relevance, if any, that a 100 percent stenosis of the right coronary artery was discovered and treated within the applicable time period should be discussed. A clear rationale for the opinions must be provided by the VA examiner. 2. Readjudicate the unauthorized medical expenses claim in light of the additional evidence of record. If this claim is not granted to the Veteran's satisfaction, issue him a supplemental statement of the case. This supplemental statement of the case should include the amended provisions of 38 U.S.C.A. § 1725 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). Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. 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. 2011). _________________________________________________ MICHAEL A. HERMAN 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) (2011).