Citation Nr: 1309980 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 10-40 758A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Murfreesboro, Tennessee THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred as a result of treatment provided at Grandview Medical Center on October 24, 2009. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from October 1958 to March 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2010 and February 2010 decisions issued by the Department of Veterans Affairs (VA) Medical Center (MC) in Murfreesboro, Tennessee. The Veteran's claims file is currently in the jurisdiction of the Nashville, Tennessee, Regional Office (RO). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's appeal, which has also been reviewed by the Board. Such does not contain any additional documents that are not contained in the paper claims file. For the reasons detailed below, the appeal is REMANDED to the VAMC via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The evidence shows that, on October 24, 2009, the Veteran presented to the emergency room at Grandview Medical Center complaining of sharp pain and swelling in his testicles. The Veteran was diagnosed with and treated for a scrotal abscess and tinea corporis. He is seeking payment or reimbursement of the emergency medical expenses incurred at Grandview Medical Center on October 24, 2009. In claims involving payment or reimbursement by VA for medical expenses incurred as a result of treatment at a private facility, there are three different possible theories of entitlement: (1) the private medical services were authorized by VA; (2) the Veteran is entitled to payment or reimbursement for services not previously authorized that are related to or aggravated a service-connected disability; or (3) the Veteran is entitled to payment or reimbursement for services not previously authorized relating to a nonservice-connected disability. See 38 U.S.C.A. §§ 1703(a), 1725, and 1728(a) (West 2002 & Supp. 2012). Generally, the admission of a Veteran to a non-VA hospital at VA expense must be authorized in advance. See 38 C.F.R. § 17.54. Whether treatment was authorized is a factual, not a medical, determination. Similes v. Brown, 5 Vet. App. 555 (1994); see 38 U.S.C.A. § 1703(a); 38 C.F.R. § 17.54. In the case of an emergency that existed at the time of admission, an authorization may be deemed a prior authorization if an application is made to VA within 72 hours after the hour of admission. 38 C.F.R. § 17.54. When a Veteran receives treatment at a non-VA facility without prior authorization, the law provides two related, but independent avenues for obtaining payment or reimbursement for medical expenses, 38 U.S.C.A. § 1725 and 38 U.S.C.A. § 1728. Under 38 U.S.C.A. § 1728(a) and 38 C.F.R. § 17.120, VA may reimburse Veterans for unauthorized medical expenses incurred in non-VA facilities where: (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 nonservice-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 (does not apply outside of the States, Territories, and possessions of the United States, the District of Columbia, and the Commonwealth of Puerto Rico); (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. Chapter 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. All three statutory requirements (a, b, and c) must be met before the reimbursement may be authorized. See Zimick v. West, 11 Vet. App. 45, 49 (1998); Hayes v. Brown, 6 Vet. App. 66, 68 (1993). Pursuant to the Veterans Millennium Health Care and Benefits Act, payment or reimbursement of non-VA emergency medical services for nonservice-connected disorders is available if certain conditions are met. 38 U.S.C.A. § 1725; 38 C.F.R. §§ 17.1000-17.1008. Specifically, to be eligible for reimbursement under these provisions for a nonservice-connected disorder, the Veteran must satisfy nine separate conditions: (a) The emergency services were provided in a hospital emergency department or a 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 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 (this standard would be met if there were 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 functions, 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 a 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 of the 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). 38 C.F.R. § 17.1002(a)-(i). The Board points out that the provisions in 38 C.F.R. § 17.1002 are conjunctive, not disjunctive; i.e. all of the enumerated criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). In addition, the Board notes that the provisions of 38 U.S.C.A. § 1725 were changed via legislation which became effective October 10, 2008. See Veterans' Mental Health and Other Care Improvements Act of 2008, Pub. L. No. 110-387, § 402, 122 Stat. 4110 (2008). Specifically, the pertinent change is that in 38 U.S.C.A. § 1725, the word "shall" in the first sentence, replaced the word "may." This made the payment or reimbursement by VA of emergent treatment non-discretionary, if the Veteran satisfied the requirements for such payment. Additionally, this amendment added a provision, which essentially expands one of the criteria that defines the meaning of "emergency treatment" to include treatment rendered (1) until such time as the Veteran can be transferred safely to a VA facility or other Federal facility and such facility is capable of accepting such transfer, or; (2) until such time as a Department facility or other Federal facility accepts such transfer if: (A) at the time the Veteran could have been transferred safely to a Department facility or other Federal facility, no Department facility or other Federal facility agreed to accept such transfer; and (B) the non-Department facility in which such medical care or services was furnished made and documented reasonable attempts to transfer the Veteran to a Department facility or other Federal facility. Id. The record reflects that the Veteran's claim was denied under the Veterans Millennium Health Care and Benefits Act. 38 U.S.C.A. § 1725; 38 C.F.R. §§ 17.1000-17.1008. In this regard, the VAMC determined in January 2010 and February 2010 denial letters to the vendors that the medical treatment in question was for a nonservice-connected condition that was clinically determined not an adjunct condition to a service-connected disability; care and services were not rendered in a medical emergency of such nature that delay would have been hazardous to life or health, and VA facilities were feasibly available. However, in the October 2010 statement of the case, only the latter two reasons were cited as the basis for the denial. The Veteran contends that his treatment on October 24, 2009, was for a service-connected disability as he was in receipt of a 30 percent rating for tinea versicolor. The record also shows that he has been granted a total disability rating based on individual unemployability as of March 26, 2004. The Veteran asserts that he called the Chattanooga VA Clinic on Friday, October 23, 2009, to complain of worsening of the rash and boil on his groin that had been previously treated at the Alvin York/Murfreesboro VA Medical Center (VAMC). He asserted that he was told to come into the clinic on a walk-in basis on Monday, October 26, 2009. However, the Veteran claims that, on Saturday, October 24, 2009, he was experiencing extreme pain and fever, difficulty walking, bowel movements, and painful urination and, as a result, he called the duty nurse at the Murfreesboro VAMC who indicated waiting until the following Monday was not advisable and the swollen testicles could be dangerous. She further stated that he should immediately report to the nearest emergency room and seek treatment. In this regard, the Veteran has reported telling the duty nurse that the Chattanooga clinic was closed on Saturday and that the Murfreesboro VA Medical Center (VAMC) was over 100 miles away. Based on his symptoms and the conversation he had with the duty nurse, the Veteran has asserted that he believed any delay in treatment was hazardous to his health and that waiting 48 hours for treatment would cause harm to his body, as VA facilities were not feasibly available at the time. The evidentiary record consists of the Veteran's claims file, medical file, and all records and evidence included on Virtual VA. The Board has carefully reviewed all pertinent evidence associated with the evidentiary record and there are no treatment or medical records from the Chattanooga VA clinic or the Murfreesboro VAMC on the dates the Veteran has reported calling both facilities. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, because the Veteran has identified VA treatment records that may be pertinent to this claim but are not yet associated with the claims file, a remand is necessary to obtain these records. Additionally, based on the Veteran's contentions that his treatment on October 24, 2009, was for a service-connected disability as he was in receipt of a 30 percent rating for tinea versicolor, and that he is in receipt of a total disability rating based on individual unemployability as of March 26, 2004, his claim should be readjudicated under both 38 U.S.C.A. § 1725 and 38 U.S.C.A. § 1728. Accordingly, the case is REMANDED for the following action: 1. Request all medical and treatment records, including any telephone logs from the duty nurse, for the Chattanooga VA clinic and the Murfreesboro VAMC from October 23, 2009, and October 24, 2009. All requests and responses for the above-described records, including negative responses, must be documented in the claims file. Requests for records from Federal agencies, including VA and military facilities, must continue until a determination is made that such records do not exist or any further efforts to obtain them would be futile. All records received should be associated with the claims file. If any identified, outstanding records cannot be obtained after making appropriate efforts, the Veteran should be notified of the missing records and the attempts made to obtain them, and allowed an opportunity to provide such records. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence under 38 U.S.C.A. § 1725 and 38 U.S.C.A. § 1728. If the claim remains denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter 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 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). ________________________________________________ A. JAEGER 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).