Citation Nr: 1237253 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 09-46 240 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in North Florida South Georgia VA Healthcare System THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred during treatment at a private medical facility between November 19, 2008 and November 20, 2008. ATTORNEY FOR THE BOARD A. M. Clark, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to September 1970. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an April 2009 determination of the North Florida South Georgia VA Healthcare System. The Veteran was scheduled to appear for a personal hearing before the Board on September 22, 2010. The Veteran did not appear for said hearing, and he has not since asked for it to be rescheduled. Accordingly, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2011). This case was most recently before the Board in May 2011, when the claim was remanded to obtain outstanding VA records, obtain a statement from the Bert Fisher Medical Center, obtain information regarding the availability of VA facilities between November 19, 2008 and November 20, 2008, and a medical opinion. The RO issued a supplemental statement of the case in June 2012 and the appeal is once again before the Board. 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 Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The Veteran was hospitalized from November 9, 2008 to November 20, 2008, at a private facility, Bert Fisher Medical Center, for septic arthritis of the right knee. VA conceded that the Veteran's treatment was under emergency circumstances, and thus paid for his emergency inpatient treatment at the private hospital from November 9, 2008 to November 18, 2008. However, VA has not authorized payment or reimbursement for the private hospitalization expenses for the remaining time period from November 19, 2008 to November 20, 2008. VA found that by November 18, 2008, the Veteran's condition had stabilized, such that further payment for medical expenses was not authorized by law. See 38 C.F.R. § 17.121 (2011). Although stabilized per VA, the Veteran remained hospitalized at the private hospital until November 20, 2008. In the May 2011 BVA Remand, it was noted that there was a suggestion that the Veteran had received treatment through VA within the 24-month period preceding the November 2008 emergency treatment was not of record. Such is a requirement for receiving reimbursement. VA now duly acknowledges that the Veteran received treatment through VA within the proscribed 24-month period. Such was noted and conceded by the VAMC in its June 2012 Supplemental Statement of the Case (SSOC). However, the actual records of those have not been associated with the claims file as specifically requested in the May 2011 Remand. Further, the Board also observed in its May 2011 BVA Remand that the record did not contain information as to why the Veteran was ineligible for the days of November 19 and 20, 2008. In essence, it was unclear whether the Veteran could have been transferred safely to a VA facility for continuation of medical treatment at any time between November 19, 2008 and November 20, 2008. The Board acknowledged that a physician had apparently reviewed the record and approved the Veteran's hospitalization until November 18, 2008, but that the actual medical opinion was not of record. An opinion was thereby requested. The June 2010 SSOC conveys the notion that a physician may have reviewed the file and provided the requested opinion. The SSOC notes that a clinical review of the medical documentation had been conducted. It also provides details relevant to the Veteran's appeal and a negative opinion. Specifically, the SSOC indicated that the Veteran was stable to safely transfer. However, the actual opinion, if one exists, is not included with the file. Indeed, it is not inherently clear as to whether the "opinion" cited in the June 2010 SSOC was a transcription of a physician's opinion or mere the reiteration of conclusions made by a VA ratings or billing specialist. In addition, the May 2011 BVA Remand noted that there was no evidence which addressed whether a VA or other Federal facility was feasibly available when the Veteran's condition had stabilized and he was suitable to be transferred. Although this is addressed in the June 2012 SSOC, it was based on VA treatment records which have not yet been associated with the claims file. Multiple references were made to a review of the Computerized Patient Record System (CPRS). Such is not acceptable. The copies of the actual records needed to be included with the claims file. Similarly, the SSOC discusses a "Gains and Losses report" and references an "Attachment A" which is not part of the record. A remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand. Where the remand orders are not complied with, the Board errs in failing to insure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Here the RO did not associate the Veteran's VA treatment records with the claims file, did not obtain a medical opinion and did not provide the documents supporting a determination that a VA or other Federal facility was feasibly available for the Veteran to be transferred to after stabilization. Because there was not complete compliance with the remand instructions, the Board is compelled to remand the appeal for appropriate adjudicatory consideration of his claim and the promulgation of an SSOC. Id; see also 38 C.F.R. §§ 19.9, 19.31(c) (2011). Accordingly, the case is REMANDED for the following actions: 1. The AMC/RO should print out and associate with the claims file copies of all VA medical care provided to the Veteran in the 24 month period preceding his November 2008 hospitalization. All attempts to procure records should be documented in the file. 2. Obtain and associate with the claims file any documents addressing when it was safe to transfer the Veteran to a VA facility; the date that such a facility was capable of accepting the transfer (when there was room available for the Veteran); and any reasonable attempts made between November 19, 2008 and November 20, 2008, to effectuate such transfer. A copy of the "Gains and Losses report" (Attachment A) cited in the June 2012 Supplemental Statement of the Case should additionally be printed and a copy should be placed in the claims file. Request that the Fee Service Review Physician, or equivalent officer, at the North Florida South Georgia VA Medical Center review the record and determine whether a VA or other Federal facility was or was not feasibly available between November 19, 2008, and November 20, 2008, and any reasonable attempts made to effectuate such a transfer. A written statement should be issued. 3. After securing the above records, request a medical opinion from an appropriate VA physician concerning whether the Veteran could have been transferred safely at any time between November 19, 2008, and November 20, 2008, to a VA facility for continuation of medical treatment. The physician must be provided with a copy of the claims file, so that he or she can properly address this question. The rationale for the opinion must be provided. 4. 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).