Citation Nr: 1330464 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 12-14 420A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Gainesville, Florida THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred during a hospitalization at Seven Rivers Regional Medical Center on September 9, 2011. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active service in the United States Army from May 1950 to April 1955. His awards and decorations include the Combat Infantryman Badge (CIB) and Purple Heart. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 decision by the Department of Veterans Affairs (VA) Medical Center (VAMC) in Gainesville, Florida. A review of the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS) does not reveal any additional documents pertinent to the present appeal. 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 appeal is REMANDED to the VAMC in Gainesville, Florida. VA will notify the appellant if further action is required. REMAND The Veteran visited the VA emergency room at the VAMC in Gainesville, Florida on the morning of Thursday, September 8, 2011, at approximately 11:08 a.m., after experiencing chest pain, dizziness, nasal congestion, shortness of breath, a choking feeling, fullness in the throat, and throat pain. He was diagnosed with a laryngeal hemangioma, which was confirmed by chest X-ray. The Veteran went to another hospital in the early morning of September 9, 2011, at approximately 1:41 a.m., after experiencing headaches, dizziness, and cervical neuralgia at a private facility, Seven Rivers Regional Medical Center. He was diagnosed with an acute headache, diabetes mellitus, and cervical neuralgia. He was discharged at 3:42 a.m. Later in the day of September 9, 2011, at 6:14 p.m., the Veteran returned to the VAMC and stayed there until September 10, 2011. He reported difficulty walking, speech impairment, choking, and dysphagia (difficulty swallowing). He was diagnosed with a laryngeal lesion, possibly hemangioma. In the December 2011 administrative decision on appeal and the February 2012 statement of the case (SOC), the VAMC denied the Veteran's medical reimbursement claim. The VAMC determined that the Veteran's private hospitalization on September 9, 2011, was for a nonservice-connected condition - a stroke. In this regard, under 38 U.S.C.A. § 1725, pursuant to the Veterans Millennium Health Care and Benefits Act, payment or reimbursement of non-VA emergency medical services for nonservice-connected conditions for a Veteran without insurance is available, if certain conditions are met. 38 U.S.C.A. § 1725 (West 2002 & Supp. 2013); 38 C.F.R. §§ 17.1000-17.1008 (2013). However, VA is not authorized to pay or reimburse unauthorized medical expenses for a nonservice-connected condition if a "health-plan contract" covers the cost of medical expenses either "in whole or in part." See 38 U.S.C.A. § 1725(b)(3)(B) (West 2002 & Supp. 2013); 38 C.F.R. § 17.1002(f) (2013). In the present case, VA did not authorize payment or reimbursement for the Veteran's private medical expenses on September 9, 2011, as it appears the Veteran has Medicare Part A insurance and Group Health Incorporation (GHA) health insurance, which disqualifies him from reimbursement of unauthorized medical expenses by VA when the disability treated was nonservice-connected. See September 2006 VA computer printout. Regardless of the RO's previous determination, it appears that the Veteran's private hospitalization in the early morning of September 9, 2011, may have been due, at least in part, to a service-connected condition - a hemangioma associated with service-connected chronic laryngitis. On this issue, subsequent VA inpatient, VA neurology, VA ENT, and VA speech pathology consultation notes dated in September 2011 all concluded that the Veteran's laryngeal hemangioma was at least partially responsible for the symptomatology that led to his hospitalization at the private facility and VAMC. The RO also granted the Veteran an increased rating for his service-connected chronic laryngitis due to his hemangioma symptomatology in the larynx, thereby establishing that the hemangioma was part of his service-connected chronic laryngitis disability. See February 2013 rating decision. It appears the Veteran's nonservice-connected neurological problems (strokes or TIAs) were also partial causes for his symptoms as well. In any event, in adjudicating the unauthorized medical expenses claim, 38 U.S.C. § 1728 for Veterans with service-connected disability is for consideration here. See also 38 C.F.R. § 17.120(a) (2013). Thus, the issue of whether the Veteran had a "health-plan contract" at the time of his hospitalization is no longer a relevant consideration in the instant case. The Veteran requests reimbursement for his unauthorized medical expenses at Seven Rivers Regional Medical Center on September 9, 2011. He contends that his private hospitalization in the early morning of September, 9, 2011, was rendered in a "medical emergency" 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. He has also asserted that the VAMC in Gainesville, Florida, was not feasibly available at the time of the private hospitalization, as the VAMC did not provide "adequate" medical care for his condition in the days leading up to his private hospitalization. See July 2013 Appellant's Brief; January 2012 NOD. Upon review of the laws and evidence, however, the Board finds that additional development of the evidence is required. First, pertinent VA regulations provide that a SOC issued to an appellant must be complete enough to allow the appellant to present his or her argument before the Board and must contain a summary of the applicable laws and regulations with appropriate citations and a discussion of how such laws and regulations affect the determination. 38 U.S.C.A. § 7105(d) (West 2002); 38 C.F.R. § 19.29 (2013). In this case, the February 2012 SOC did not include a citation and discussion of the correct provisions for reimbursement of unauthorized medical expenses when the treated disability was service-connected - the revised provisions of 38 U.S.C.A. § 1728 (effective October 2008) and 38 C.F.R. § 17.120. See Veterans' Mental Health and Other Care Improvements Act of 2008, Pub. L. No. 110-387, § 402, 122 Stat. 4110 (2008). To ensure due process, on remand, the VAMC should issue a supplemental statement of the case (SSOC), which includes the provisions of 38 U.S.C.A. § 1728 (effective October 2008) and 38 C.F.R. § 17.120, and adjudicates the claim under the provisions for reimbursement of unauthorized medical expenses when the treated disability was service-connected. The Board cannot consider whether the Veteran can be awarded payment or reimbursement for unauthorized medical expenses of a service-connected disability without prior consideration by the RO, as this would be prejudicial to the Veteran. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Second, a remand is required to secure outstanding VA treatment records. VA's duty to assist includes obtaining records of relevant VA medical treatment. 38 U.S.C.A. § 5103A(c)(2) (West 2002); 38 C.F.R. § 3.159(c)(2), (c)(3) (2013). See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is charged with constructive knowledge of evidence generated by VA). A December 2012 VA sinus examination documented additional VA treatment notes pertaining to the Veteran's hemangioma diagnosis dated from September 9, 2011, to the present. These VA records have not been obtained and associated with the claims folder. Such records, if available, may shed further light on whether his September 9, 2011 private hospitalization rendered in a medical emergency and whether a VA facility was feasibly available at the time of his private treatment. See 38 U.S.C.A. §§ 1725(f), 1728; 38 C.F.R. §§ 17.53, 17.120. 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. The VAMC should secure all medical or administrative records from the VAMC in Gainesville, Florida, that are dated from September 9, 2011, to the present. All attempts to secure these records, and any response received, must be documented in the claims file. If no records are available, a response to that effect should be documented in the file. (A December 2012 VA sinus examination documented additional VA treatment notes pertaining to the Veteran's hemangioma diagnosis dated from September 9, 2011, to the present. These VA records have not been obtained and associated with the claims folder.) 2. When the development requested has been completed, the case should be reviewed by the VAMC on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a SSOC and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. This SSOC should contain the most recent, amended provisions of 38 U.S.C.A. § 1728 and 38 C.F.R. § 17.120 and any applicable regulations for reimbursement of unauthorized medical expenses when the treated disability was service-connected. 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). _________________________________________________ JESSICA J. WILLS 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).