Citation Nr: 1316273 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 10-49 040 ) DATE ) ) On appeal from the Consolidated Fee Unit of the Department of Veterans Affairs South Central VA Health Care Network THE ISSUES Whether the Veteran filed a timely claim for entitlement to payment of or reimbursement for medical expenses incurred in connection with private medical services provided from July 5, 2009, to July 8, 2009, and if so whether the claim should be granted. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The Veteran had active military service from June 1966 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 action by the Consolidated Fee Unit (CFU) of the South Central Department of Veterans Affairs (VA) Health Care Network. In addition to the paper claims files, there is an electronic file (Virtual VA) associated with the claim. Virtual VA does not currently contain any evidence pertinent to the claim that is not already included in the paper claims files. The timeliness issue is decided herein and the issue of whether the claim should be granted is addressed in the REMAND that follows the ORDER section of this decision. FINDINGS OF FACT 1. The Veteran received medical treatment at the Louisiana State University Health Care Medical Center of Louisiana at New Orleans (MCLANO) for an acute myocardial infarction from July 5, 2009, and July 8, 2009. 2. The claim for payment of or reimbursement for the above services was received less than 90 days after the treatment was provided. CONCLUSION OF LAW The Veteran did timely submit a claim for payment for private emergency treatment he received from July 5, 2009 to July 8, 2009. 38 U.S.C.A. § 1725 (West 2002 & Supp. 2012); 38 C.F.R. § 17.1004 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran asserts that he is entitled to reimbursement for private medical care received at MCLANO from July 5, 2009, to July 8, 2009. In this case, the evidence shows that the Veteran did timely submit his claim for reimbursement. 38 U.S.C.A. § 1725 authorizes reimbursement for emergency treatment a veteran receives in a non-Department facility. The implementing regulation, 38 C.F.R. § 17.1004, provides: (d) To receive payment or reimbursement for emergency services, a claimant must file a claim within 90 days after the latest of the following: (1) July 19, 2001; (2) The date that the veteran was discharged from the facility that furnished the emergency treatment; (3) The date of death, but only if the death occurred during transportation to a facility for emergency treatment or if the death occurred during the stay in the facility that included the provision of the emergency treatment; or (4) The date the veteran finally exhausted, without success, action to obtain payment or reimbursement for the treatment from a third party. (e) If after reviewing a claim the decisionmaker determines that additional information is needed to make a determination regarding the claim, such official will contact the claimant in writing and request additional information. The additional information must be submitted to the decisionmaker within 30 days of receipt of the request or the claim will be treated as abandoned, except that if the claimant within the 30-day period requests in writing additional time, the time period for submission of the information may be extended as reasonably necessary for the requested information to be obtained. According to the November 2010 Statement of the Case (SOC), the Veteran's claim for reimbursement was received on April 8, 2010, and denied on the same day with a notice letter also sent on April 8, 1010. Review of the record does not reveal any document from the Veteran date-stamped April 8, 2010, nor does the record include any VA letter dated April 8, 2010. What the record does include is a letter of denial, dated September 13, 2010, with a hand-written notation that this was a copy of the letter mailed on April 8, 2010. In addition, the SOC indicates that a letter from the Veteran, received on August 25, 2010, was his notice of disagreement (NOD). However, review of that document reveals that the Veteran did not know that his claim had been denied as of that point in time. Indeed, the SOC also reflects that no duty to assist letter was ever sent to the Veteran. Further review of the record reveals that the Veteran sent a letter to VA that was received on October 30, 2009. The Veteran referred to a prior letter of July 24, 2009, and asked when payment would be made to MCLANO for his July 5, 2009, heart attack treatment. The record does not contain the original letter from the Veteran, but he included a copy of that letter with his November 2010 VA Form 9. The Veteran's July 2009 letter was sent specifically to the CFU and states that the Veteran had suffered a massive heart attack on July 5, 2009 and had received treatment from MCLANO. He indicated that he needed an authorization from VA to pay his MCLANO bill and that he did not have any insurance. However, the record does include a letter from the CFU dated October 30, 2009; that letter indicates that they were acknowledging an NOD, but that there was no inpatient claim on file. The letter further states that the UB92 and complete inpatient records were being requested for review; there was no clear indication that the Veteran was supposed to send these records and there was no notice that there was a 30-day period in which to submit the records. Furthermore, there was no indication in the letter that any VA forms or other attachments were sent to the Veteran. Interestingly, the SOC does not include any mention of this October 2009 CFU letter. The evidence that is of record tends to support the Veteran's contention that he submitted his claim for reimbursement at the end of July 2009. A July 17, 2009, VA nursing outpatient note states that the Veteran had brought in copies of his discharge summary and laboratory results from his hospital stay for review by his doctor. The evidence of record includes copies of July 2009 MCLANO records, including a consultation report, a discharge summary, a cardiac catheterization report, an echocardiogram report and blood test result reports; these were printed on July 16, 2009. At the end of October 2009, the Veteran was seeking the status of his claim and made specific reference to a July 24, 2009, claim letter. After consideration of all of the evidence of record, the Board finds that the preponderance of the evidence indicates that the Veteran's claim for payment for medical treatment from July 5, 2009 to July 8, 2009, was timely filed (within 90 days after the treatment). There is no evidence of record to demonstrate that the Veteran was provided with any VA forms or that he was advised that failure to submit requested additional evidence within 30 days would result in the claim being considered abandoned. 38 C.F.R. § 17.1004(e) is clear regarding the consequences of a failure to provide within 30 days additional information the agency of original jurisdiction determines to be necessary to complete an application for benefits under 38 U.S.C.A. § 1725. In this case, there is no clear evidence that the CFU actually requested additional records from the Veteran and he certainly was not informed of the 30-day time limit for submission. In addition, a May 2010 facsimile record from the MCLANO billing unit contains a request that the CFU contact the billing unit; there is no evidence of record that the CFU did so. Accordingly, the Board concludes that the Veteran filed a timely claim for payment of or reimbursement for the private medical expenses at issue. ORDER The claim for payment or reimbursement for unauthorized medical services provided by MCLANO from July 5, 2009 to July 8, 2009, is timely. REMAND Initially, the Board notes that the originating agency has not addressed the merits of the Veteran's claim. This should be done before the Board does so. In addition, the record does not reflect that the originating agency has provided the representative with copies of critical correspondence. This also should be done before the Board decides the appeal. Accordingly, this case is REMANDED for the following actions: 1. Send copies of all critical correspondence, to include the SOC, to the Veteran's representative. 2. After securing any necessary authorization, obtain any additional needed records from MCLANO from the Veteran's treatment there in July 2009. To the extent an attempt to obtain such records is unsuccessful, the CFU file should contain documentation of the attempts made. The Veteran and his representative must also be informed of the negative results, and should be given opportunity to submit the sought-after records. 3. Undertake any other indicated development. 4. Then, readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, provide a supplemental statement of the case to the Veteran and his representative, and afford them the requisite opportunity to respond before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See 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). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs