Citation Nr: 1331980 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 13-07 265 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Phoenix, Arizona THE ISSUE Entitlement to reimbursement of unauthorized medical expenses incurred on October 15, 2011, at the Del Webb Medical Center. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION 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 served on active duty with the United States Army from October 1993 to July 1995, and as a member of the Army National Guard has a period of active duty training from May 1989 to September 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 decision by the Phoenix, Arizona, United States Department of Veterans Affairs (VA) Medical Center (VAMC), which denied entitlement to reimbursement. The Veteran testified at a July 2013 hearing held before the undersigned at the VA's Phoenix, Arizona, Regional Office (RO); a transcript of the hearing is associated with the claims file. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure consideration of the totality of the evidence. The appeal is REMANDED to the Phoenix, Arizona, VAMC. VA will notify the appellant if further action is required. REMAND The Veteran contends that he had to seek private treatment for severe pain related to his service-connected back because he was unable to be seen at a VA facility within any reasonable time period. To establish eligibility for payment or reimbursement of medical expenses incurred at a non-VA facility under 38 U.S.C.A. § 1728, a claimant must satisfy three conditions. First, there must be a showing that the care was for a service-connected disability, for a nonservice-connected disability which is aggravated by a service-connected disability, for any disability in the case of a Veteran who is permanently and totally disabled by a service-connected disability, or for any disability in the case of a Veteran participating in a rehabilitation program. Records establish that the Veteran is service-connected for degenerative disc disease of the lumbar spine, meeting the first requirement for reimbursement. Second, the services must be for a medical emergency, such that delay in seeking treatment would have been hazardous to life or health. Finally, no VA or other Federal facility could have been feasibly available and seeking prior authorization was not reasonable. 38 U.S.C.A. § 1728; 38 C.F.R. § 17.120; see also Zimick v. West, 11 Vet. App. 45, 49 (1998). A failure to satisfy any of the three criteria precludes VA from paying unauthorized medical expenses incurred at a private facility. Zimick, 11 Vet. App. at 49; see also Malone v. Gober, 10 Vet. App. 539, 542 (1997), citing Cotton v. Brown, 7 Vet. App. 325, 327 (1995). Unfortunately, the medical reimbursement claims file produced by the VAMC does not contain sufficient information to permit a full and fair consideration of these remaining elements, and hence remand is required. The Statement of the Case (SOC) indicates that the claim was initially denied in November 2011 (with notice of such provided in December 2011) on the grounds that the condition for which treatment was sought was not service-connected, there was no emergency, and VA facilities were available. This decisional document, to include the notice letter, is not contained in the physical or the electronic medical reimbursement claims file. The VAMC did reconsider the claim in November 2012, and continued the denial on the far more limited ground that VA facilities were available. The medical reimbursement claims file reflects a form summarizing the reconsideration; it is unclear if this is the actual decision or not. However, it contains no statements of reasons or bases which can be assessed, or indicate the evidence considered. This is especially troubling in light of the changes made to the reason for denial. Although the SOC provides a summary of the procedures followed and references specific evidence, it also contains no discussion of why the condition was considered to be emergent (or not, initially), and does not address the Veteran's contentions that when he did visit the VA facility, the wait for attention was excessive and unreasonable. The Board cannot therefore effectively assess the claim, and the Veteran himself was deprived of an opportunity to fully respond. Remand is required to secure all decisional documents and correspondence related to the claim, and for a supplemental SOC (SSOC) which includes a clear statement of rationale supporting the VMAC's decision, and not mere restatement of conclusions. Secondly, the Board notes that VA treatment records for the time frame involved appear incomplete. VA treatment records for October 14, 2011, are of record, but the Veteran reports he visited VA the next day as well, and the circumstances of that visit caused him to seek private care. Such records would be helpful in determining whether the condition was emergent at the time, as well as addressing the availability of VA facilities. On remand, complete VA records for October 2011 must be associated with the claims file. Finally, the Board notes in regard to the search for any of the records described above that there is in existence at the RO a separate standard VA claims file (as opposed to the medical reimbursement file), and that it would be prudent to search that claims file. (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is required.) Accordingly, the case is REMANDED for the following action: 1. Obtain complete VA records from the Phoenix VAMC for October 2011, to include medical and administrative records, such as ER check-in logs. 2. Associate with the medical reimbursement claims file copies of all documents related to the adjudication of the claim, including but not limited to the November 2011 denial, December 2011 notice, September 2012 reconsideration submission, and the December 2012 denial on reconsideration, as well as any supporting documents, memoranda, or emails regarding the claim. Attention is directed in that regard to the Veteran's standard VA claims file located at the RO as a potential location for such documents. 3. Review the medical reimbursement claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If any of the benefits sought remain denied, issue an appropriate SSOC and provide the Veteran and his representative the requisite period of time to respond. An appropriate SSOC must include adequate reasons and bases explaining the denial and underlying reasons. (i.e., why were VA facilities considered available?) The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ MICHAEL A. PAPPAS 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).