Citation Nr: 1330204 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 10-39 204 ) DATE ) ) Received from the Department of Veterans Affairs Medical Center in Canandaigua, New York THE ISSUE Entitlement to payment or reimbursement of medical expenses incurred in connection with the Veteran's care at Wilson Memorial Regional Medical Center (WMRMC) on April 15, 2010. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION Although not verified on the current record, it appears from available documents that the Veteran served on active duty from May 1978 to February 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from May 2010 decisions by the Department of Veterans Affairs (VA) Medical Center (MC) in Albany, New York, which denied payment or reimbursement of medical expenses incurred in connection with the Veteran's care at WMRMC on April 15, 2010. After the decisions were entered, the case was transferred to the jurisdiction of the VAMC in Canandaigua, New York. In August 2011, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing held at the VA Regional Office in Buffalo, New York. A transcript of that hearing has been prepared and associated with the claims file. During the hearing, the Veteran submitted additional evidence, along with a waiver of initial review by the agency of original jurisdiction. See 38 C.F.R. § 20.1304(c). The Board notes that the Veteran has an electronic (Virtual VA) file, in addition to the paper combined health record currently before the Board. The documents in the electronic file include additional evidence-including letters from VA to the Veteran that contain information with respect to her service dates and VA disability compensation-which the Board has reviewed. For the reasons stated, this appeal is being REMANDED to the VAMC. VA will notify the Veteran if further action is required on her part. REMAND 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. See 38 U.S.C.A. §§ 1725, 1728 (West 2002 & Supp. 2013). Under both 38 U.S.C.A. §§ 1725 and 1728, VA can make such payment or reimbursement only if, among other things, the care in question qualifies as "emergency treatment." See 38 U.S.C.A. § 1725(a) (West Supp. 2013); Veterans' Mental Health and Other Care Improvements Act of 2008, Pub. L. No. 110-387, § 402, 122 Stat. 4110 (2008) (codified at 38 U.S.C.A. § 1728(a) (West Supp. 2013)). For purposes of both statutes, the term "emergency treatment" means medical care or services furnished, in the judgment of the Secretary: (1) when Department or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable; (2) 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 (3) until (a) 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 (b) 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), 1728(c) (West Supp. 2013). In the present case, the VAMC has denied payment or reimbursement of medical expenses incurred in connection with the Veteran's care at WMRMC on April 15, 2010 on grounds that VA facilities were available for her care. The Veteran disputes that determination. She maintains, among other things, that she received gynecological care at the VA Community Based Outpatient Clinic (CBOC) in Binghamton, New York, on April 13 or 14, 2010; that she experienced extremely heavy vaginal bleeding on the morning of April 15, 2010; that she called the Binghamton VA CBOC; that her care provider (a nurse practitioner) was not on duty that day; and that a VA nurse ultimately advised her to seek care in the emergency department at WMRMC, rather than the VAMC in Syracuse, New York. Presently, the record on appeal contains no treatment records corresponding to the gynecological care the Veteran reportedly received at the VA CBOC in Binghamton on April 13 or 14, 2010. Nor does it contain any record of the telephone contact she reportedly had with that facility on the morning of April 15, 2010, when she was reportedly advised to seek treatment at WMRMC. Because this evidence, if obtained, could bear on the question of whether her condition could properly be considered emergent and thus, whether VA facilities were feasibly available for her care, efforts should be made to procure it. The Board also finds that it could be helpful to obtain records of the Veteran's fee-basis treatment by a private gynecologist, Dr. Donald M. Werner, as well as her reported treatment at WMRMC on March 28, 2010, for purposes of affording further context to the episode of treatment here at issue. It is not entirely clear that the Veteran's paper claims file contains any additional evidence that would impact on the present appeal, inasmuch as the Veteran's honorable service and permanent and total disability have, at least implicitly, been conceded. Nevertheless, on remand, in order to afford the Veteran every consideration, and to ensure that her claim is adjudicated based on an evidentiary record that is as complete as possible, her paper claims file should be located and associated with the remainder of the record on appeal. For the reasons stated, this case is REMANDED for the following actions: 1. Locate the Veteran's paper claims file and associate it with her paper combined health record. 2. Ask the Veteran to provide releases for relevant records of treatment from Dr. Donald M. Werner, and for her reported treatment at WMRMC on March 28, 2010, and to identify, and provide appropriate releases for, any other care providers who may possess new or additional evidence pertinent to the issue on appeal. If she provides the necessary releases, assist her in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the claims file. 3. Obtain copies of records pertaining to the gynecological care the Veteran reportedly received at the VA CBOC in Binghamton, New York on April 13 or 14, 2010, and any records of the telephone contact she reportedly had with that facility on the morning of April 15, 2010, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the claims file. 4. After conducting any additional development deemed necessary, the issue on appeal should be reviewed. If the benefit sought remains denied, furnish a supplemental statement of the case (SSOC) to the Veteran and her representative, and afford them an opportunity to respond. After the Veteran and her representative have been given an opportunity to respond to the SSOC, the claims file should be returned to this Board for further appellate review. No action is required by the Veteran until she receives further notice, but she may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). The purposes of this remand are to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. This matter 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 (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of this appeal. 38 C.F.R. § 20.1100(b) (2012).