Citation Nr: 1310640 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 10-40 755A ) 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 for medical services provided at Summitt Medical Center from October 10, 2009, through October 12, 2009. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD Tiffany Berry, Associate Counsel INTRODUCTION The Veteran served on active duty in the military from November 1969 to May 1972. This appeal to the Board of Veterans' Appeals (Board) is from a February 2010 decision of the Department of Veterans Affairs Medical Center (VAMC) in Murfreesboro, Tennessee, which denied the reimbursement of unauthorized medical expenses in the amount of $22,593.00, incurred from October 10 to 12, 2009. 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 is requesting payment/reimbursement for treatment he received from Summitt Medical Center from October 10 through October 12, 2009. After a review of the record, the Board observes that further development is required prior to adjudicating the Veteran's claim. In claims involving payment/reimbursement by VA for medical expenses incurred as a result of treatment at a private facility, it must first be determined whether the services for which payment is sought were authorized in advance by VA. 38 U.S.C.A. § 1703(a) (West 2002); 38 C.F.R. § 17.54 (2012); see also Malone v. Gober, 10 Vet. App. 539, 541 (1997). If not authorized, it must be determined whether the claimant is otherwise entitled to payment or reimbursement for services. VA is authorized to reimburse Veterans for emergency medical treatment by two statutes - 38 U.S.C. § 1725 and 38 U.S.C. § 1728. The term "emergency treatment" means medical care or services furnished, in the judgment of the Secretary, (A) when Department or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable; (B) when such care or services are rendered in a medical emergency of such nature that a prudent layperson reasonably expects that delay in seeking immediate medical attention would be hazardous to life or health; and (C) until (i) such time as the Veteran can be transferred safely to a Department facility or other Federal facility and such facility is capable of accepting such transfer; or (ii) such time as a Department facility or other Federal facility accepts such transfer if (I) 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 (II) 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. 38 U.S.C.A. § 1725(f)(1); see also 38 U.S.C.A. § 1728(c) (stating that the term "emergency treatment" has the meaning given such term in section 1725(f)(1)). To be eligible for reimbursement under 38 U.S.C.A. § 1725, a Veteran must satisfy all of the following 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 before hand 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 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; (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. Payment or reimbursement for emergency treatment may be made only for the period from the beginning of the initial evaluation treatment until such time as the Veteran could be safely discharged or transferred to a VA facility or other Federal facility. 38 C.F.R. § 17.1005. For purposes of payment or reimbursement under 38 U.S.C. § 1725, VA deems it safe for the Veteran to be transferred once the Veteran has become stabilized. Id. In this case, private treatment records reveal that on October 10, 2009, the Veteran presented for emergency treatment at Summitt Medical Center with a chief complaint of chest and abdominal pain. Following initial evaluation in the emergency department, the Veteran was diagnosed with acute pancreatitis, likely as due to alcohol. He remained hospitalized until discharge on October 12, 2009. The Veteran contends that he could not use VA facilities because he was transported by ambulance and they took him to the closest medical facility, despite his request to be transport to the closest VA Medical Center. The Veteran indicated that throughout his stay at Summitt Medical Center, he told "everyone" to take him to a VA medical facility. The record (i.e., the Veteran's combined health record (CHR)) does not contain all of the information necessary for a proper adjudication of the Veteran's claim. First, there are no administrative records regarding a possible request for transfer or admission to a VA medical center. These records, if they exist, could be relevant to this decision and should therefore be obtained and associated with the claims file. Second, and finally, it is unclear whether the Veteran has any other form of insurance for payment or reimbursement, in whole or in part, for the emergency treatment he received at Summitt Medical Center. The Board recognizes the Veteran stated in his notice of disagreement that he does not have any other form of health care, however, there is no documentation in the claims file of this fact. Therefore, a remand is necessary prior to adjudication of the Veteran's claim. Accordingly, the case is REMANDED for the following action: 1. Determine whether there are any outstanding administrative records from Summitt Medical Center, dated from October 10, 2009, through October 12, 2009. If so, obtain and associated these records with the Veteran's claims file. 2. Associate with the claims file either confirmation that the Veteran has another form of healthcare (such as Medicare A and B), or confirmation that he is not enrolled in another healthcare program. 3. Undertake any additional development deemed necessary. For example, if a determination is needed as to when a medical emergency existed and stabilized such should be obtained from a physician who will not be and has not been involved in the decision in this case. 4. After the development requested above has been completed to the extent possible, the record should again be reviewed. If the benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. VA will notify the Veteran if further action is required on his part. 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). _________________________________________________ D. JOHNSON 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).