Citation Nr: 1240004 Decision Date: 11/21/12 Archive Date: 11/27/12 DOCKET NO. 10-44 020A ) DATE ) ) Received from the Department of Veterans Affairs, Veterans Health Administration (VHA), in Denver, Colorado THE ISSUE Entitlement to payment or reimbursement for medical care provided by Medina Hospital on December 28, 2009. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from August 1951 to August 1954. This case is before the Board of Veterans' Appeals (Board) on appeal from a July 2010 decision by the Department of Veterans Affairs (VA) Medical Center in Brecksville, Ohio. Jurisdiction over the appeal currently resides with the VHA in Denver, Colorado. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 Veteran and his representative assert that VA should provide reimbursement for the cost of the emergency medical care the Veteran received at Medina Hospital on December 28, 2009. In this regard, VA denied the claim for reimbursement because the Veteran had third party insurance coverage that is primary to the VA for coverage of this emergency medical care. However, the records found in the claims file only list VA as the Veteran's source of insurance. Therefore, the Board finds that a remand is required to obtain documentation of the Veteran's third party insurance coverage as well as the amount, if any, it paid towards his $554.00 medical bill from Medina Hospital. 38 C.F.R. § 19.9 (2012); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992) (holding that when reference is made to pertinent records, VA is on notice of their existence and has a duty to assist the Veteran to attempt to obtain them). If the above findings are favorable to the Veteran, the Board also finds that a remand is required to obtain a medical opinion as to whether the care that the Veteran received at Medina Hospital was rendered in a medical emergency as defined by controlling laws and regulations (i.e., the treatment was for a condition 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 and/or an attempt to use the VA Medical Center before hand would not have been considered reasonable by a prudent layperson). As to the laws and regulations governing payment or reimbursement for medical care, the Board notes that they changed three times since the issuance of the October 2010 statement of the case. See 38 U.S.C.A. §§ 17.107, 17.106 (Effective July 25, 2011) (VA amending its regulations concerning the reimbursement of medical care and services delivered to veterans for nonservice-connected conditions in situations where third-party payers are required to reimburse VA for costs related to care provided by VA to a veteran covered under the third-party payer's plane); 38 U.S.C.A. §§ 17.120, 17.121, 17.1001, 17.1002, 17.1005, 17.1006, 17.1008 (Effective January 20, 2012) (VA amended its regulations to require it to reimburse the covered costs for emergency care received at non-VA facilities for eligible veterans under §§ 1725 and 1728, extended VA's payment authority for emergency treatment received at a non-VA facility, and made the definition of "emergency treatment" in § 1725(f)(1) applicable to § 1728); 38 C.F.R. §§ 17.1001, 17.1002, 17.1004, 17.1005 (Effective May 21, 2012) (VA expanded the qualifications for payment or reimbursement to veterans who receive emergency services in non-VA facilities, established accompanying standards for the method and amount of payment or reimbursement, and provided retroactive payment or reimbursement for emergency treatment received by a veteran in certain circumstances). Therefore, a remand is also required to provide the claimant with notice of these changes. 38 C.F.R. § 19.31 (2012). Accordingly, the appeal is REMANDED to the AMC/VHA for the following actions: 1. The AMC/VHA should provide the Veteran with updated notice of the recent changes to the laws and regulations governing payment or reimbursement for medical care found at 38 U.S.C.A. §§ 17.107, 17.106 (Effective July 25, 2011); 38 U.S.C.A. §§ 17.120, 17.121, 17.1001, 17.1002, 17.1005, 17.1006, 17.1008 (Effective January 20, 2012); 38 C.F.R. §§ 17.1001, 17.1002, 17.1004, 17.1005 (Effective May 21, 2012). 2. The AMC/VHA should obtain and associate with the record documentation of the Veteran's third party insurance coverage as well as the amount, if any, it paid towards his $554.00 medical bill from Medina Hospital. If the records are not available, or if the search for the records yields negative results, that fact should clearly be documented in the claims file and the Veteran notified in writing. 3. As to any claim that the Veteran received prior authorization under 38 U.S.C.A. §§ 1703, 1710 (West 2002 & Supp. 2012); 38 C.F.R. §§ 17.52, 17.53, 17.54 (2012), the AMC/VHA should undertake all appropriate development and make a finding as to whether the Veteran met the regulatory criteria. 4. As to the claim for reimbursement of unauthorized medical expenses under the provisions of 38 U.S.C.A. § 1728 (West 2002 & Supp. 2012) and 38 C.F.R. § 17.120 (2012), the AMC/VHA should make a finding as to whether the Veteran met any one of the following criteria: i. the care was rendered for a service-connected disability; ii. the care was rendered for a non-service-connected disability associated with and held to be aggravating an adjudicated service-connected disability; iii. the Veteran has a total disability permanent in nature resulting from a service-connected disability, and/or iv. the claimant was a participant in a vocational rehabilitation program at the time the care was rendered. If the Veteran met ANY of the above criteria, the AMC/VHA should forward the claim's file to an appropriate VA healthcare provider to obtain answers to the following questions after a review of the record on appeal: (a) Is it at least as likely as not (50 percent probability or more) that the medical treatment provided the Veteran on December 28, 2009, was rendered in a medical emergency of such nature that delay would have been hazardous to life or health? (b) Is it at least as likely as not (50 percent probability or more) that on December 28, 2009, a VA or other Federal facilities were not feasibly available and an attempt to use them beforehand or obtain prior VA authorization for the services required would not have been reasonable, sound, wise, or practicable, or treatment had been or would have been refused? In providing answers to the above questions, the examiner is advised that the term at least as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. 5. As to claim for reimbursement of the medical expenses under 38 U.S.C.A. § 1725 (West 2002 & Supp. 2012); 38 C.F.R. §§ 17.1000-1008 (2012) (The Veterans Millennium Health Care and Benefits Act), the AMC/VHA should make a finding as to each of the following: i. at the time of the treatment did the Veteran have coverage under a health-plan contract for payment or reimbursement, in whole or in part, for that treatment; ii. does the Veteran remains financially liable for the treatment; iii. has the claimant exhausted without success all claims and remedies reasonably available to him or the provider against any third party for payment of the treatment; iv. was the Veteran enrolled in the VA health care system within the 24-month period preceding the furnishing of the treatment; and v. was the emergency services provided in a hospital emergency department or a similar facility held out as providing emergency care to the public. If the Veteran meets ALL of the above criteria, the AMC/VHA should forward the claim's file to an appropriate VA healthcare provider to obtain answers to the following questions after a review of the record on appeal: (a) Is it at least as likely as not (50 percent probability or more) that the medical treatment provided the Veteran on December 28, 2009, was for a condition 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? (b) Is it at least as likely as not (50 percent probability or more) that on December 28, 2009, a VA or other Federal facility/provider was not feasibly available and an attempt to use them before hand would not have been considered reasonable by a prudent layperson? In providing answers to the above questions, the examiner is advised that the term at least as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. 6. Thereafter, the AMC/VHA should readjudicate the claim. Such readjudication should take into account whether the Veteran had prior authorization for the hospitalization under 38 C.F.R. §§ 17.52, 17.53, 17.54 as well as entitlement to reimbursement of unauthorized medical expenses under 38 U.S.C.A. § 1728 and the Millennium Health Care and Benefits Act (see 38 U.S.C.A. § 1725) taking into account all the recent amendment to the controlling laws and regulations found at 38 U.S.C.A. §§ 17.107, 17.106 (Effective July 25, 2011); 38 U.S.C.A. §§ 17.120, 17.121, 17.1001, 17.1002, 17.1005, 17.1006, 17.1008 (Effective January 20, 2012); 38 C.F.R. §§ 17.1001, 17.1002, 17.1004, 17.1005 (Effective May 21, 2012). 7. If any of the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence received, and any evidence not received, and all applicable laws and regulations considered pertinent to the issue currently on appeal including notice of the recent changes to the controlling laws and regulations found at 38 U.S.C.A. §§ 17.107, 17.106 (Effective July 25, 2011); 38 U.S.C.A. §§ 17.120, 17.121, 17.1001, 17.1002, 17.1005, 17.1006, 17.1008 (Effective January 20, 2012); 38 C.F.R. §§ 17.1001, 17.1002, 17.1004, 17.1005 (Effective May 21, 2012). A reasonable period of time should be allowed for response. 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. 2012). _________________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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) (2012).