Citation Nr: 1307635 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 10-36 268A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Wichita, Kansas THE ISSUE Entitlement to payment or reimbursement for private emergency transportation services on April 10, 2010. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant served on active duty from April 1963 to April 1974. This matter comes before the Board of Veterans' Appeals, hereinafter the Board, from letter decision of June 2010 of the Department of Veterans Affairs (VA) Medical Center (VAMC) in Wichita, Kansas. In that action, the VA Medical Center denied entitlement to reimbursement for medical expenses associated with private emergency transportation services on April 10, 2010. The appeal is REMANDED to the VA Medical Center in Wichita, Kansas. VA will notify the appellant if further action is required. REMAND The appellant contends that he is entitled to payment or reimbursement of ambulance expenses incurred on April 10, 2010. The Sedgwick County Emergency Medical Service (EMS) transported the appellant via ambulance to a VA medical facility after he had fallen down and broken his hip. The EMS was called to the appellant's home and upon examination, and also after contacting the VA Medical Center (VAMC) to receive approval to transport the appellant to a VA facility that could admit him, the EMS transported the appellant to the emergency room of the Wichita VAMC. Subsequent to the transfer, the EMS forwarded a bill to the VAMC for reimbursement. Upon review, the VAMC denied the request for payment and the appellant appealed that action. The grounds that were used to make the denial were that the appellant's income from the previous year, pursuant to 38 U.S.C.A. § 111, was over the means test threshold. See also, September 2010 Statement of the Case (SOC) (denying the appellant's claim on similar grounds under 38 C.F.R. § 17.143). The appellant was notified of this decision, provided his appellate rights, and perfected this appeal. In the alternative, the appellant stated that the ambulance expenses were preauthorized by the VAMC. Preliminarily, the VAMC failed to apply, in full, the correct laws and regulations governing this claim. In this regard, payment or reimbursement of expenses of care, not previously authorized, including transportation, may be paid on the basis of a claim timely filed under 38 U.S.C.A. §§ 1725, 1728 (West 2002 & Supp. 2012). Payment under 38 U.S.C.A. § 1728 is warranted under the following circumstances: (a) For veterans with service-connected disabilities. Care or services not previously authorized were rendered to a veteran in need of such care or services: (1) For an adjudicated service-connected disability; (2) For non-service-connected disabilities associated with and held to be aggravating an adjudicated service-connected disability; (3) For any disability of a veteran who has a total disability permanent in nature resulting from a service-connected disability; (4) For any illness, injury, or dental condition in the case of a veteran who is participating in a rehabilitation program under 38 U.S.C. ch. 31 and who is medically determined to be in need of hospital care or medical services for any of the reasons enumerated in § 17.48(j); and (b) In a medical emergency. Care and services not previously authorized were rendered in a medical emergency of such nature that delay would have been hazardous to life or health, and (c) When Federal facilities are unavailable. 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. 38 C.F.R. § 17.120 (2012); see also, 38 U.S.C.A. § 1728 (West 2002 & Supp. 2012). All three of these requirements must be met before payment may be authorized. Zimick v. West, 11 Vet App. 45, 49 (1998). Payment for or reimbursement of emergency services for non-service-connected disorders in non-VA facilities may be authorized under the Millennium Health Care Act. See 38 U.S.C.A. § 1725, as implemented at 38 C.F.R. § 17.1002. To be eligible for payment or reimbursement under this authority, all of the following conditions must be satisfied: (a) The emergency services were provided in a hospital emergency department or similar facility held out as providing emergency care to the public; (b) The claim for payment or reimbursement for the initial evaluation and treatment is for a condition of such nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health (this standard would be met if there was an emergency medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) that a prudent layperson who possesses an average knowledge of health and medicine could reasonably expect the absence of immediate medical attention to result in placing the health of the individual in serious jeopardy, serious impairment to bodily function, or serious dysfunction of any bodily organ or part); (c) A VA or other Federal facility/provider was not feasibly available and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson (as an example, these conditions would be met by evidence establishing that the veteran was brought to a hospital in an ambulance and the ambulance personnel determined that the nearest available appropriate level of care was at a non-VA medical center); (d) 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 a 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); (e) At the time the emergency treatment was furnished, the veteran was enrolled in the VA health care system and had received medical services under authority of 38 U.S.C. Chapter 17 within the 24-month period preceding the furnishing of such emergency treatment; (f) The veteran is financially liable to the provider of emergency treatment for that treatment; (g) The veteran has no coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the emergency treatment (this condition cannot be met if the veteran has coverage under a health-plan contract but payment is barred because of a failure by the veteran or the provider to comply with the provisions of that health-plan contract, e.g., failure to submit a bill or medical records within specified time limits, or failure to exhaust appeals for a denial of payment); (h) If the condition for which the emergency treatment was furnished was caused by an accident or work-related injury, the claimant has exhausted without success all claims and remedies reasonably available to the veteran or provider against a third party for payment of such treatment; and the veteran has no contractual or legal recourse against a third party that could reasonably be pursued for the purpose of extinguishing, in whole or in part, the veteran's liability to the provider; and (i) The veteran is not eligible for reimbursement under 38 U.S.C. [§] 1728 for the emergency treatment provided 38 U.S.C. [§] 1728 authorizes VA payment or reimbursement for emergency treatment to a limited group of veterans, primarily those who receive emergency treatment for a service-connected disability). See 38 C.F.R. § 17.1002 (2012). To date, there is no indication of record that the VAMC considered the applicability of these provisions. A remand, therefore, is required to afford the VAMC this opportunity in the first instance. Payment or reimbursement may also be authorized under 38 C.F.R. §§ 70.1-70.50 (2012) for beneficiary travel. See also, 38 U.S.C.A. § 111 (West 2002). As noted above, the VAMC considered the applicability of the 38 C.F.R. § 17.143, a regulation which at one time governed eligibility and reimbursement matters pertaining to beneficiary travel. Effective July 30, 2008, however, 38 C.F.R. § 17.143 was removed and a new Part 70 was added to Title 38 to address beneficiary travel under 38 U.S.C.A. § 111. See 73 Fed. Reg. 36,798 (June 30, 2008). VA will approve payment for beneficiary travel if the travel was made to obtain care or services for a person who is eligible for beneficiary travel payments under 38 C.F.R. § 70.10, or in certain circumstances, if the travel includes a special mode of transportation. 38 C.F.R. § 70.4 (2012). Under 38 C.F.R. § 70.10(a) (2012), the following listed persons are eligible for beneficiary travel payments: (1) A veteran who travels to or from a VA facility or VA-authorized health care facility in connection with treatment or care for a service-connected disability (regardless of percent of disability); (2) A veteran with a service-connected disability rated at 30 percent or more who travels to or from a VA facility or VA-authorized health care facility for examination, treatment, or care for any condition. (3) A veteran who travels to a VA facility or VA-authorized health care facility for a scheduled compensation and pension examination. (4) A veteran receiving pension under 38 U.S.C. § 1521, who travels to or from a VA facility or VA-authorized health care facility for examination, treatment, or care. (5) A veteran whose annual income (as determined under 38 U.S.C. § 1503) does not exceed the maximum annual rate of pension that the veteran would receive under 38 U.S.C. § 1521 (as adjusted under 38 U.S.C. § 5312) if the veteran was eligible for pension and travels to or from a VA facility or VA authorized health care facility for examination, treatment, or care. (6) A veteran who travels to or from a VA facility or VA-authorized health care facility for examination, treatment, or care, and who is unable to defray the expenses of that travel. (7) A member of a veteran's immediate family, a veteran's legal guardian, or a person in whose household the veteran certifies an intention to live, if such person is traveling for consultation, professional counseling, training, or mental health services concerning a veteran with a service-connected disability; or a member of a veteran's immediate family, if such person is traveling for bereavement counseling relating to the death of such veteran in the active military, naval, or air service in the line of duty and under circumstances not due to the veteran's own misconduct. (8) An attendant other than a VA employee, who is accompanying and assisting a beneficiary eligible for beneficiary travel payments under this section, when such beneficiary is medically determined to require the presence of an attendant because of a physical or mental condition. (9) Beneficiaries of other Federal agencies, incident to medical services rendered upon requests of those agencies, subject to reimbursement agreement by those agencies. (10) Allied beneficiaries as defined by 38 U.S.C. § 109 subject to reimbursement agreement by the government concerned. When payment for beneficiary travel is requested for travel that includes a special mode of transportation, VA will approve payment if the travel is medically required, the beneficiary is unable to defray the cost of such transportation, and the Veterans Health Administration (VHA) approved the travel prior to travel in the special mode of transportation or the travel was undertaken in connection with a medical emergency. 38 C.F.R. § 70.4(d) (2012). Under 38 C.F.R. § 70.10(c) (2012), a beneficiary shall be considered unable to defray the expenses of travel if the beneficiary: (1) Has an income for the year (as defined under 38 U.S.C. 1503) immediately preceding the application for beneficiary travel that does not exceed the maximum annual rate of pension that the beneficiary would receive under 38 U.S.C. 1521 (as adjusted under 38 U.S.C. 5312) if the beneficiary were eligible for pension during that year; or (2) Is able to demonstrate that due to circumstances such as loss of employment, or incurrence of a disability, his or her income in the year of travel will not exceed the maximum annual rate of pension that the beneficiary would receive under 38 U.S.C. 1521 (as adjusted under 38 U.S.C. 5312) if the beneficiary were eligible for pension; or (3) Has a service-connected disability rated at least 30 percent; or (4) Is traveling in connection with treatment of a service-connected disability. In light of the foregoing, the appropriate VA medical facility should be contacted and any and all records for the appellant pertaining to the April 10, 2010, episode of care, including but not limited to any documentation concerning preauthorization of ambulance services, should be obtained. The VAMC should readjudicate the appellant's claim with specific attention to the laws and regulations outlined in detail above. Moreover, the VAMC should address on remand whether (1) the appellant had income for the year immediately preceding the application for beneficiary travel that did not exceed the maximum annual rate of pension that the beneficiary would receive under 38 U.S.C. 1521 if he was eligible for pension; (2) he is financially unable to defray the expenses of travel related to this episode of care; and (3) his ambulance transport was preauthorized by the VAMC. The appellant should also be provided complete notice of the information and evidence needed to substantiate his claim pursuant to the Veterans Claims Assistance Act. Additionally, an appellant must be afforded the full right to representation in all stages of an appeal. 38 C.F.R. § 20.600 (2012). Here, the appellant has authorized The American Legion to be his accredited representative in all matters before the VA. He has not revoked this representation. In this regard, the Board notes that when an appellant has appointed a representative, the RO or VAMC must afford that representative the opportunity to execute a VA Form 646, Statement of Accredited Representative in Appealed Case, prior to certification of the appeal to the Board. As such, The American Legion must be given an opportunity to offer written argument on the appellant's behalf, and this argument must be considered by the VAMC. To do otherwise would detrimentally prejudice the appellant; accordingly, this case must be remanded also so that this due process deficit may be corrected. Therefore, to ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claims and to ensure full compliance with due process requirements, the case is REMANDED to the VAMC for the following development: 1. The VAMC should associate with the claims folder any medical treatment records pertaining to the April 10, 2010, episode of care that are not already of record. If there are no such records, this should be documented in the claims folder. All documents received should be included in the claims folder for review. 2. The VAMC should contact the appellant and ask that he provide any and all information that might support the finding that (a) he had income for the year immediately preceding the application for beneficiary travel that did not exceed the maximum annual rate of pension that the beneficiary would receive under 38 U.S.C. 1521 if he was eligible for pension, and (b) that he was financially unable to defray the expenses of travel related to this episode of care. The appellant should also be provided complete notice of the information and evidence needed to substantiate his claim pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). 3. After undertaking the above development, the Wichita VA Medical Center must ensure that all requested action has been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 4. Thereafter, the Wichita VA Medical Center should adjudicate the issue on appeal. If the benefit sought on appeal remains denied, the appellant and his accredited 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 and applicable law and regulations considered pertinent to the issue currently on appeal. The SSOC must contain the wording of all the reimbursement regulations and laws that may be applicable to the appellant's claim to include 38 U.S.C.A. §§ 1703, 1725, and 1728 (West 2002 & Supp. 2010), along with 38 C.F.R. §§ 70.1 - 70.4, and 70.10 (2012). The VAMC should also address with specificity the appellant's contentions that (1) he has income for the year immediately preceding the application for beneficiary travel that does not exceed the maximum annual rate of pension that the beneficiary would receive under 38 U.S.C. 1521 if he was eligible for pension; (2) he is financially unable to defray the expenses of travel related to this episode of care; and (3) his ambulance transport was preauthorized by the VAMC. Additionally, the VAMC must afford the appellant's accredited representative, The American Legion, the opportunity to file a VA Form 646 before the case is returned to the Board for further appellate review. An appropriate period of time should be allowed for response before the case is returned to the Board. Thereafter, the case should be returned to the Board for further appellate consideration. No action is required of the appellant until he is contacted by the Wichita VA Medical Center. 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). _________________________________________________ ERIC S LEBOFF 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).