Citation Nr: 1305085 Decision Date: 02/12/13 Archive Date: 02/21/13 DOCKET NO. 09-28 350 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Bay Pines, Florida THE ISSUE Entitlement to payment or reimbursement for medical care provided by Sarasota Memorial Hospital on December 12, 2008. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran served on active duty from October 1955 to October 1958. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2009 decision by the Department of Veterans Affairs (VA) Medical Center in Bay Pines, Florida. Please note 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 Veteran if further action is required. REMAND The Veteran contends that VA should provide reimbursement for the cost of the emergency medical care he received at Sarasota Memorial Hospital on December 12, 2008. Private medical records show that on December 11, 2008, the Veteran was at Sarasota Memorial Hospital with his wife so that she could get some x-rays. The Veteran was pushing his wife in a wheelchair when he developed pain in his groin. He went to the emergency room at the hospital and was admitted. It was noted that the Veteran was "screaming out in pain" when he arrived. He was unable to move his right leg at all without having excruciating pain. There was no history of any trauma and no visible signs of any abnormality. The Veteran was lying in the bed and occasionally screamed as if he was having some sort of spasm or cramp in that area. The right groin pain prevented him from standing. The Veteran was given medication and seemed to be better. He was diagnosed with severe right groin pain, etiology unclear. The next day on December 12, 2008, the Veteran underwent tests, including a magnetic resonance imaging (MRI) of the lumbar spine. He was evaluated by physical therapy and did "okay" ambulating with a walker. The Veteran was discharged home and told to follow-up with primary care. The pertinent diagnoses were groin strain and severe groin pain. A review of the claims file shows that the Veteran is service-connected for bilateral hearing loss and tinnitus. The Veteran is seeking reimbursement under the Millennium Bill Act as articulated in 38 C.F.R. §§ 17.1000 (payment or reimbursement for emergency services for non-service-connected condition in non-VA facilities) and 17.1002 (substantive conditions for payment or reimbursement). Under 38 C.F.R. § 17.1002, certain criteria must be met in order to qualify for reimbursement. Specifically, one of the criteria is that the claim for payment or reimbursement for any medical care beyond the initial emergency evaluation and treatment is for a continued medical emergency of such nature that the Veteran could not have been safely discharged or transferred to a VA or other Federal facility (the medical emergency lasts only until the time the veteran becomes stabilized). 38 C.F.R. § 17.1002(d). In the January 2009 decision by the VA Medical Center (VAMC) in Bay Pines, Florida, they denied the Veteran's claim for payment or reimbursement for medical care provided by Sarasota Memorial Hospital on December 12, 2008. According to the Bay Pines VAMC, the Veteran had stabilized on December 11, 2008. See 38 C.F.R. § 17.1002(d). In the May 2009 statement of the case (SOC), the Bay Pines VAMC noted that according to Utilization Review nurses, there was documentation that the Veteran did "not appear to be in distress" on the day of admission. Thus, the point of stabilization was determined to be on December 11, 2008. In March 2009, the Chief Medical Officer reviewed the episode of care at Sarasota Memorial Hospital and agreed that the point of stabilization was on December 11, 2008. Therefore, the remainder of the episode of care from December 12, 2008 was denied. The Board recognizes the Bay Pines VAMC's determination that because the Veteran did "not appear to be in distress" on the day of admission, his point of stabilization was on December 11, 2008. However, the Board cannot find the documentation where it was specifically noted that the Veteran did "not appear to be in distress" on the day of admission. Rather, as described above, it appears he was initially in distress, screaming out in pain, and did not seem better until medication was administered. Upon remand, the VAMC must specifically note where in the evidence of record it was reported that the Veteran did "not appear to be in distress." 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 May 2009 SOC. 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). Specifically, it appears that changes were made to the pertinent regulation, 38 C.F.R. § 17.1002(d), eliminating the requirement that the medical emergency lasts only until the time the veteran becomes stabilized. These provisions appear to have some potential retroactive application to claims filed before that date. Id. Therefore, a remand is required to provide the claimant with notice of these changes and to determine whether any of the changes apply to the Veteran's claim. 38 C.F.R. § 19.31 (2012). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The AMC/VAMC 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/VAMC must specifically note where in the evidence of record it was reported that the Veteran did "not appear to be in distress" on the day of his admission (December 11, 2008) to the Sarasota Memorial Hospital. 3. Thereafter, the AMC/VAMC should readjudicate the claim. Such readjudication should take 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); and the specific changes found in 38 C.F.R. § 17.1002(d). If such action does not grant the benefit claimed, the RO should provide the Veteran and his representative a supplemental statement of the case and an appropriate period of time should be allowed for response. Thereafter, the case should be returned to this Board for appellate review. The Veteran 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). _________________________________________________ KELLI A. KORDICH 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) (2012).