Citation Nr: 1337125 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 13-16 894 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Gainesville, Florida THE ISSUE Entitlement to payment of or reimbursement by the Department of Veterans Affairs (VA) for medical expenses incurred as a result of private hospitalization at Shands Hospital in August 2012, to include whether the claim was timely filed. REPRESENTATION Appellant represented by: [redacted] ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from June 1954 to June 1956. This matter is before the Board of Veterans' Appeals (Board) on appeal from a determination by the VA North Florida/South Georgia Medical Center located in Gainesville, Florida, which denied the claim as not timely filed. The VA Health Administration (VHA) in Waco, Texas, currently has jurisdiction over the Veteran's VA claims folder. 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). For the reasons detailed below, the Board finds that the Veteran's claim was timely filed. However, as addressed in the REMAND portion of the decision below, further development is required regarding the merits of the underlying claim. Accordingly, that portion of the appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. As an additional matter, the Board observes that the Veteran had previously designated a veterans service organization (VSO) as his accredited representative before VA via a VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative) dated in December 1990. Further, this VSO submitted written statements in support of the Veteran's appeal in May and September 2013. However, the Veteran submitted a new VA Form 21-22 dated in April 2013 designating a private individual as his accredited representative before VA. No limit as to the extent of the private individual's representation was noted in this VA Form 21-22. Under the law, only one organization, representative, agent, or attorney will be recognized at one time in the prosecution of a particular claim, with a few noted exceptions not shown to apply here. 38 C.F.R. § 14.631(e)(1). A power of attorney may be revoked at any time, and unless specifically noted otherwise, receipt of a new power of attorney constitutes a revocation of an existing power of attorney. 38 C.F.R. § 14.631(f)(1). The Board therefore is recognizing this change in representation, with the most recent designation in favor of the private individual. FINDINGS OF FACT The record reflects the Veteran filed a timely claim with VA for the payment of or reimbursement of medical expenses incurred at Shands Hospital in August 2012. CONCLUSION OF LAW The criteria for a timely claim for the payment of or reimbursement of medical expenses are met. 38 U.S.C.A. §§ 1725, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.151, 3.155, 17.1004(d) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). In adjudicating a claim for reimbursement of medical expenses, the Board must make a factual determination as to whether VA gave prior authorization for the non-VA medical care that the appellant received in a private facility for the treatment received on any of the dates in question. See 38 U.S.C.A. § 1703(a); see also 38 C.F.R. § 17.54. This is a factual, not a medical, determination. See Similes v. Brown, 5 Vet. App. 555 (1994). In cases where VA did not give prior authorization for non-VA medical care, a claimant may seek reimbursement under 38 U.S.C.A. § 1728 or 38 U.S.C.A. § 1725. Under 38 U.S.C.A. § 1728, payment or reimbursement of the expenses of care not previously authorized, in a private or public hospital not operated by VA, may be paid when the Veteran received care for: (a) an adjudicated service-connected disability; (b) nonservice-connected disabilities associated with and held to be aggravating an adjudicated service-connected disability; (c) any disability of a Veteran who has a total disability permanent in nature resulting from a service-connected disability; or (d) any illness, injury or dental condition in the case of a Veteran who is participating in a rehabilitation program under 38 U.S.C. Chapter 31 and who is medically determined to be in need of hospital care or medical services for any of the reasons enumerated in Sec. 17.48(j). 38 U.S.C.A. § 1728(a)(2); 38 C.F.R. § 17.120(a). The record reflects that service connection is not currently in effect for any disability. As such, payment or reimbursement under 38 U.S.C.A. § 1728 is not warranted. Accordingly, the route to entitlement to unreimbursed medical expenses in this case stems from 38 U.S.C.A. § 1725, for treatment of a nonservice-connected disorder, pursuant to the Millennium Act. Payment or reimbursement for emergency services for non service-connected conditions in non-VA facilities may be authorized under 38 U.S.C.A. § 1725 and 38 C.F.R. §§ 17.1000-100 8. In this case, the record reflects that the Veteran was taken to the emergency room of Madison County Hospital in August 2012, and was then transferred to Shands Hospital. The Veteran maintains that VA was contacted by Madison County Hospital at the time of his emergency room visit, and that it was VA which instructed Madison County Hospital to transfer him to Shands Hospital. As such, he contends that the medical treatment was authorized by VA and/or that a VA facility was not feasibly available which warrants reimbursement of his medical expenses at Shands Hospital. This case was denied below on the basis that the Veteran did not timely file his claim for the payment or reimbursement of medical expenses incurred at Shands Hospital in August 2012. The Board acknowledges that claims for reimbursement under 38 U.S.C.A. § 1725 must be received within 90 days of the latest of the following: (1) July 19, 2001; (2) the date that the veteran was discharged from the facility that furnished the emergency treatment; (3) the date of death, but only if the death occurred during transportation to a facility for emergency treatment or if the death occurred during the stay in the facility that included the provision of the emergency treatment; or (4) the date the veteran finally exhausted, without success, action to obtain payment or reimbursement for the treatment from a third party. 38 C.F.R. § 17.1004(d). The VA administrative claims process recognizes formal and informal claims. A formal claim is one that has been filed in the form prescribed by the Secretary. 38 C.F.R. § 3.151. Any communication or action, indicating an intent to apply for one or more benefits, under the laws administered by VA, from a claimant may be considered an informal claim. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within 1 year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. 3.155. "Application" is not defined in the statute. However, in the regulations, "claim" and "application" are considered equivalent and are defined broadly to include "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p); see also Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999). The United States Court of Appeals for the Federal Circuit (Federal Circuit), in Rodriguez, supra, pointed out that for purposes of establishing the requirements and procedures for seeking veterans' benefits, a claim, whether "formal" or "informal" must be "in writing" in order to be considered a "claim" or "application" for benefits, and that the provisions of 38 C.F.R. § 3.1(p) defines "claim," informal as well as formal, as a "communication in writing." Further, the Federal Circuit stated that when 38 C.F.R. § 3.155(a) refers to "an informal claim," it necessarily incorporates the definition of that term in 38 C.F.R. § 3.1(p) as a "communication in writing." The Federal Circuit also pointed out the provisions of 38 C.F.R. § 3.155(a) make clear that there is no set form that an informal written claim must take. All that is required is that the communication "indicat[e] an intent to apply for one or more benefits under the laws administered by the Department," and "identify the benefits sought." As noted in the Statement of Case (SOC) it was determined below that the Veteran's claim was received in March 2013, more than 90 days after his discharge from Shands Hospital. However, the record also includes letters dated in November 2012 from the Veteran's accredited representative regarding this claim. Although one of these letters is date-stamped indicating it was received in May 2013, the earlier letter is not and is dated within the 90 day period of the Veteran's discharge from Shands Hospital. The Board also notes that these letters are addressed to a VA medical facility in Lake City, Florida, rather than the Gainesville VAMC which adjudicated this case below. Moreover, there is a clinical tracking record for the Veteran that appears to have been created in the North Florida/South Georgia VHS noting the Veteran's initial treatment at Madison County Hospital and transport to Shands Hospital in August 2012. This clinical tracking record is identified as being created in August 2012. Further, the Veteran has contended that VA has reimbursed Madison County Hospital for the medical expenses incurred in August 2012 prior to his transfer to Shands Hospital. In view of the foregoing, the Board finds that VA was aware of the Veteran's August 2012 private medical treatment at Shands Hospital, and that the Veteran was seeking either prior authorization or reimbursement of medical expenses at that facility, within the 90 day period following his discharge from Shands. Simply put, the Board finds that the Veteran did file a timely claim for the benefits sought on appeal. Reasonable doubt has been resolved in the Veteran's favor. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Therefore, the claim cannot be denied on that basis, and VA must consider the merits of the underlying claim. ORDER A claim of entitlement to payment of or reimbursement by VA for medical expenses incurred as a result of private hospitalization at Shands Hospital in August 2012 was timely filed. To this extent only, the benefit sought on appeal was allowed. REMAND The Board reiterates that the merits of the Veteran's claim was not considered below. Consequently, it does not appear adequate development was conducted regarding the merits of this case. For example, while records are on file from Shands Hospital, no records appear to be on file from Madison County Hospital nor VA medical records during this period, to include the Lake City facility. As the Veteran has indicated Madison County Hospital was in contact with VA at the time of his initial emergency room visit, and that facility was purportedly instructed by VA to transfer him to Shands Hospital, such records appear necessary in order to determine whether VA had authorized such treatment in advance and/or whether a VA medical facility was feasibly available. The fact the Veteran was purportedly in contact with a VA regarding his August 2012 medical treatment also indicates there may be outstanding VA records with respect to this case. The United States Court of Appeals for Veterans Claims (Court) has held that VA records which are in existence are constructively of record and the failure of the RO or the Board to consider any such pertinent records might constitute clear and unmistakable error, even though such evidence was not actually in the record assembled for appellate review. Bell v. Derwinski, 2 Vet. App. 611 (1992). Relevant statutory and regulatory provisions also emphasize the importance of obtaining pertinent VA records as part of the duty to assist. See 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2). In view of the foregoing, a remand is required in order to obtain these records. 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. After securing any necessary release, obtain records from Madison County Hospital for the treatment received by the Veteran in August 2012, as well as any outstanding records from Shands Hospital during this period. In addition, obtain any outstanding VA medical records for the Veteran for this period, to include any records from the Lake City VA medical facility. 2. After completing any additional development deemed necessary, readjudicate the issue on appeal in light of any additional evidence added to the records assembled for appellate review. In making this determination, be aware that the Board has determined that this claim was timely filed. Further, this determination should reflect consideration as to whether the Veteran had prior authorization from VA for the treatment received at Shands Hospital and/or whether a VA medical facility was feasibly available for such treatment at that time. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the veteran and his representative should be furnished a Supplemental SOC (SSOC), which addresses all of the evidence obtained after the issuance of the SOC, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs