Citation Nr: 1326307 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 11-13 138 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Huntington, West Virginia THE ISSUE Entitlement to reimbursement or payment by the Department of Veterans Affairs (VA) of medical expenses incurred by the Veteran at Charleston Area Medical Center from May 5, 2009, to June 9, 2009. ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION According to the limited information provided by the agency of original jurisdiction, the Veteran served on active duty from July 1949 to October 1953. The appellant in this case (the Veteran's daughter), however, has reported that the Veteran had an additional period of active duty from February 1954 to January 1957, and was a prisoner of war of the North Korean Government from December 1950 to September 1953. The Veteran died in June 2009. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a determination of the Department of Veterans Affairs Medical Center (VAMC) in Huntington, West Virginia. In connection with this appeal, the appellant requested and was scheduled for a personal hearing before a Veterans Law Judge at the VA Regional Office (RO) in Indianapolis, Indiana. Although the appellant was notified of the time and date of the hearing by mail, she failed to appear and neither furnished an explanation for her failure to appear nor requested a postponement or another hearing. Pursuant to 38 C.F.R. § 20.702(d) (2012), when an appellant fails to appear for a scheduled hearing and has not requested a postponement, the case will then be processed as though the request for a hearing had been withdrawn. Accordingly, the Board will proceed with consideration of this appeal based on the evidence of record. For the reasons set forth below, this matter is REMANDED to the VAMC. VA will notify the appellant if further action is required. REMAND Payment or reimbursement for emergency hospital care and medical services provided to eligible Veterans for service-connected and nonservice-connected conditions at non-VA facilities is provided for under 38 U.S.C.A. §§ 1728 and 1725 (West 2002 & Supp. 2012). During the course of this appeal, VA amended its regulations applicable to such claims. See 76 Fed. Reg. 79,069, (December 21, 2011); 78 Fed. Reg. 36,092 (June 17, 2013). The VAMC has not yet considered these amendments in connection with this claim. The Veteran's Medical Administrative Services (MAS) folder was transferred to the Board without including his claims folder, as maintained by the local RO. As best the Board can discern from the limited information provided, at the time of the hospitalization at issue in this case, the Veteran had multiple service-connected disabilities, including arteriosclerotic heart disease, rated as 100 percent disabling. During his period of hospitalization at the Charleston Area Medical Center from May 5, 2009, to June 9, 2009, the Veteran was reportedly treated for multiple conditions, including acute congestive heart failure with history of myocardial infarction. He reportedly died in June 2009, shortly after the period of hospitalization at issue in this case. It is unclear from the record who filed the original application for reimbursement or payment of medical expenses incurred by the Veteran at Charleston Area Medical Center from May 5, 2009, to June 9, 2009. It is also unclear when such application was received by VA. Regardless, it appears that the VAMC concluded that payment or reimbursement was not warranted under the provisions discussed above as the treatment the Veteran received was not emergent in nature. It appears that the Veteran's daughter appealed this determination and is the appellant in this case. After reviewing the available record, the Board finds that additional action is necessary prior to further appellate consideration. Proper claimants for reimbursement or payment by VA for emergency treatment a Veteran received at a non-VA medical facility are specifically delineated in the applicable statutes and regulations. They are as follows: (A) the Veteran who received the services (or his or her guardian); (b) the hospital, clinic, or community resource that provided the services; or (C) a person or organization other than the Veteran who paid for the services. See 38 U.S.C.A. §§ 1725(a)(1), (2)(A)-(B), 1728(b); 38 C.F.R. §§ 17.123, 17.1004(a) (2012). As best the Board can discern from the available record, it appears that this claim may have been filed after the Veteran's death. The Veteran's estate itself does not have the legal standing to pursue a claim for payment or reimbursement by VA for emergency medical services. See VAOPGCCONCL 1-2007 (Oct. 29, 2007) (advising that unless the appellant belongs to one of the categories of statutorily-authorized claimants, the appeal must be dismissed). The Board is unable to discern from the record whether the appellant is a proper claimant for reimbursement under VA statute and regulations. Again, the applicable legal criteria authorize payment only to specifically delineated claimants, including a person who paid for the Veteran's treatment. It does not appear that the VAMC undertook any effort to discern whether the appellant is a proper claimant, i.e. whether she paid the medical expenses incurred by the Veteran at Charleston Area Medical Center from May 5, 2009, to June 9, 2009. Prior to any determination on the merits of the claim, the threshold question of the appellant's standing in this matter must be developed and determined. Here, the Board observes that there is some ambiguity in the available record as to whether the Charleston Area Medical Center filed a claim or initiated an appeal with respect to the issue of entitlement to payment by the VA of medical expenses incurred by the Veteran at Charleston Area Medical Center from May 5, 2009, to June 9, 2009. In other words, if that medical facility never received payment, then that entity may be a proper claimant. The VAMC must ensure that any pending notice of disagreement filed by that entity has been duly addressed in a separate appeal. Accordingly, the case is REMANDED to the VAMC for the following 1. The VAMC must undertake the necessary notification and development efforts to in order to determine whether the appellant is a proper claimant in this case, i.e. whether she paid the medical expenses incurred by the Veteran at Charleston Area Medical Center from May 5, 2009, to June 9, 2009. 2. After the development requested above is completed, the VAMC should reconsider the claim. If it is determined that the appellant is a proper claimant under 38 C.F.R. § 17.123, i.e. she paid for the services rendered to the Veteran, the VAMC should proceed to the merits of the appeal, considering the amendments to the applicable regulations. If any determination is adverse, a supplemental statement of the case must be provided to the appellant and she must be given an opportunity to respond. 3. The case should then be returned to the Board for further appellate review. The Veteran's VA claims folder as maintained by the local RO must accompany the MAS folder. If a claims folder does not exist, documentation of that fact must be included in the MAS folder. 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). _________________________________________________ Cheryl L. Mason 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).