Citation Nr: 1338998 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 12-27 038A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Tucson, Arizona THE ISSUE Entitlement to payment or reimbursement for unauthorized medical expenses incurred at the Tucson Medical Center between June 20 and June 22, 2011. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran had active service from August 1958 to August 1960 and from May 1961 to July 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 administrative decision of the Department of Veterans Affairs Medical Center (VAMC) in Tucson Arizona. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The record reveals that the Veteran was treated at a private hospital, the Tucson Medical Center (TMC), from June 18 to June 22, 2011. VA has paid the costs of the Veteran's hospitalization at TMC associated with the Veteran's stay at TMC on June 18 and June 19, 2011. VA denied payment or reimbursement for the costs of the Veteran's treatment at TMC for June 20 to June 22, 2011. The Veteran timely appealed the denial of payment or reimbursement of the latter portion of the Veteran's treatment at TMC. Given that VA granted reimbursement of the cost of the Veteran's hospital treatment at TMS for June 18 and June 19, 2011, the Board notes that the criteria of a medical emergency and that a VA facility was not feasibly available for those days has been conceded by VA. However, the VA determined that the Veteran is not entitled to payment or reimbursement of the costs of his medical treatment at TCM for June 20 - 22, 2011, on the basis that the Veteran refused transfer to a VA facility when the medical emergency ended. The RO pointed out that the Veteran signed a NON-VA Hospitalization Declination of Transfer Form on June 20, 2011. On the form the Veteran checked the category that states, "I choose not to transfer to SAVAHCS. I understand that I am responsible for all bills associated with this Hospitalization; or have my Medicare and/or Private insurance billed." The Veteran testified in July 2013 that he was in the emergency room with several tubes in him and he was still not too coherent when he was given the VA form to fill out regarding transfer to a VA facility. He reported that he had not been informed by any medical people, or by any VA people, as to what kind of medical condition he was in, or whether there would be any harm for him to be transferred. The Veteran stated that he was just scared. The Board notes that the Veteran's testimony is supported by a statement the Veteran added to the bottom of the VA form. It says, "Please help - I collapsed closer to TMC than to the VA, so the EM ambulance took me to TMC. Since I will be released tomorrow it would not be prudent to move me today. I am hooked up to the machine thru [ ]." The Board notes that the Veteran's final sentence on the document was partly cut off when it was faxed to VA and is not legible. A copy of the complete original document must be obtained in order that the Veteran's complete statement that he wrote on June 20, 2011 may be evaluated. The Board notes that the regulation, 38 C.F.R. § 17.121, provides that VA will not approve claims for payment or reimbursement of the costs of emergency treatment not previously authorized for any period beyond the date on which the medical emergency ended. It notes that VA considers that an emergency ends when the designated VA clinician at the VA facility has determined that based on sound medical judgment the veteran who received emergency treatment could have been transferred from the non-VA facility to a VA medical center for continuation of treatment. 38 C.F.R. § 17.121(c) provides that if a stabilized veteran who requires continued non-emergency treatment refuses to be transferred to an available VA facility, VA will make payment or reimbursement only for the expenses related to the initial evaluation and the emergency treatment furnished to the veteran up to the point of refusal of transfer by the veteran. The medical treatment records in the Veteran's claims folder do not indicate at what point in time the Veteran's medical emergency ended. Although the Veteran signed the form indicating that he wished to stay at TCM even if he had to pay for the medical treatment himself, there is no indication in the record as to whether at that point in time his medical emergency had ended. The Veteran's treatment records should be examined by a qualified VA physician for an opinion as to at what point in time the Veteran's medical emergency had ended and the Veteran became stabilized such that transfer to a VA facility would have been prudent. The October 2012 statement of the case (SOC) discusses 38 U.S.C.A. § 1725 which relates to non-service-connected disabilities. The SOC does not discuss 38 U.S.C.A. § 1728 which provides the requirements for payment or reimbursement of private medical treatment related to service-connected disabilities, or for a nonservice-connected disability associated with and held to be aggravating an adjudicated service-connected disability. Given that the Veteran's service-connected disabilities include a kidney disability for which a 60 percent rating has been assigned, and given that the Veteran's hospitalization at TCM was due to acute renal failure, the Veteran should be provided a supplemental statement of the case (SSOC) that discusses 38 U.S.C.A. § 1728. 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) (2013). Expedited handling is requested.) 1. Obtain a complete copy of the June 20, 2011, NON-VA Hospitalization Declination of Transfer form which includes the entire statement written by the Veteran at the bottom of the document. 2. After obtaining any necessary authorization from the Veteran, obtain copies of all of the Veteran's treatment records from Tucson Medical Center dated from June 18 2011, to June 22, 2011. If any records cannot be obtained, a notation to that effect should be inserted in the claims file. The Veteran and his representative are to be notified of any unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 3. When the above actions have been accomplished to the extent possible, have the Veteran's file reviewed by an appropriate physician. The examiner should provide an opinion as to what point in time the medical records indicate that the Veteran's medical emergency had ended and the Veteran had stabilized such that transfer from the private hospital would be prudent. 4. Readjudicate the unauthorized medical expenses claim in light of the additional evidence of record. If this claim is not granted to the Veteran's satisfaction, issue a supplemental statement of the case. The SSOC should include all pertinent laws and regulations, including 38 U.S.C.A. § 1728, 38 C.F.R. § 17.120, and 38 C.F.R. § 17.121. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. 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. 2013). _________________________________________________ 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) (2013).