Citation Nr: 1318261 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 10-18 455A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Gainesville, Florida THE ISSUE Entitlement to payment or reimbursement for unauthorized private medical expenses incurred at Putnam Medical Center on July 27, 2009. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION 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 Veteran had active military service from October 1941 to July 1949. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2009 determination of the Department of Veterans Affairs Medical Center (VAMC) in Gainesville, Florida. The Veteran and his spouse testified before the Board at an April 2013 hearing conducted at the St. Petersburg, Florida, VA Regional Office (RO). A transcript of the hearing is of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran is claiming entitlement to reimbursement of private medical expenses incurred on July 27, 2009, for treatment at a non-VA medical facility. VA is authorized to reimburse eligible veterans for the reasonable value of emergency treatment furnished in a non-Department facility. 38 U.S.C.A. § 1725 (West 2002). To be eligible, the veteran must be an active Department health-care participant who is personally liable for the emergency treatment furnished. In cases where reimbursement is warranted, payment may be made directly to the hospital or other health care provider that furnished the treatment, or to the person or organization that paid for such treatment on behalf of the veteran. Id. VA may provide payment or reimbursement for the reasonable value of emergency treatment furnished to a veteran for non-service-connected conditions in a non-VA facility if each of the following conditions have been met: (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 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 (2012); see also 38 U.S.C.A. § 1725; Veterans Millennium Health Care and Benefits Act, Pub. L, No. 106-177, 113 Stat. 1553 (1999). The Veteran's claim was denied by the agency of original jurisdiction (AOJ) as it was determined criteria (b) and (c) were not met. Specifically, the AOJ found the Veteran's condition at the time he sought treatment was non-emergent, there were VA facilities available and that, given his complaints, there was ample time for him to make a weekday clinic appointment. See VAMC medical review. The record indicates the Veteran presented to the Putnam Medical Center emergency room on July 27, 2009, complaining of a two-week history of pain in the right ribs, which was worse with coughing or deep breathing. At the April 2013 Board hearing, the Veteran testified that he was experiencing chest pains radiating down the left arm. He and his wife further testified that he was being treated by a VA physician for a heart condition for approximately three years (not two weeks), and had been advised to seek emergency care should such symptoms arise. See April 2013 Board hearing transcript. To this point, the Veteran's representative noted that outstanding VA treatment records documenting the Veteran's treatment for a heart condition may be helpful in adjudicating the instant claim. 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). On remand, VA must undertake efforts to acquire these records as they may be material to the instant claim. See 38 U.S.C.A. § 5103A(b). As a final note, while the Veteran's claim was reviewed by VAMC personnel, the credentials of the reviewer are unclear, referred to as only the Chief Medical Officer's Designee. Further, it is not clear how the determination was rendered regarding the feasibility and prudency of seeking treatment at a VA facility, as the portion of the review addressing the name and distance to the nearest VA facility was not completed. As such, on remand, the Veteran's claim should be fully reviewed by an appropriate VA medical professional to determine whether payment or reimbursement is warranted. 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. Contact the Veteran and request that he provide information as to all treatment of his heart condition, including the names and addresses of all health care providers whose records have not already been provided to VA. Upon receipt of the requested information and the appropriate releases, contact all identified health care providers and request that they forward copies of all available clinical documentation pertaining to treatment of the Veteran, not already of record, for incorporation into the claims file. If identified records are not ultimately obtained, the Appellant should be notified pursuant to 38 C.F.R. § 3.159(e) (2012). 2. Obtain and associate with the claims file all outstanding VA treatment records related to the Veteran's treatment for a heart condition. Specifically, all relevant records from the Gainesville, Florida, VAMC should be obtained. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(2) (2012). 3. Following completion of the above, forward the expanded claims file to an appropriate VA medical examiner to address the following: a. Is it at least as likely as not (i.e., probability of at least 50 percent), that the Veteran's condition on July 27, 2009, was of such a nature that a prudent layperson would have reasonably expected that a delay in seeking immediate medical attention would have been hazardous to life or health? b. If (a) is answered no, was a VA facility feasibly available on July 27, 2009? In answering this question, also address whether the use of a VA facility before a private facility would have been considered reasonable by a prudent layperson, taking into consideration the relative distance of the two facilities to the Veteran's home. In rendering the requested opinions, the examiner is instructed that the question of medical emergency is determined on the basis of what a reasonable lay person would believe at the time of the claimed emergency, rather than medical findings following evaluation. A detailed rationale should be provided for all opinions expressed. 4. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claim based on the entirety of the evidence. If the benefits sought on appeal are not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). _________________________________________________ K. PARAKKAL 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).