Citation Nr: 1339927 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 11-03 343 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Cleveland, Ohio THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred at Alliance Community Hospital on June 22, 2010. WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The appellant apparently served on active duty from July 1974 to August 1979 (the record before the Board does not include a DD Form 214 or a service department verification of his service). This case comes to the Board of Veterans' Appeals (Board) on appeal from a July 2010 administrative decision by the Department of Veterans Affairs (VA) Medical Center (MC) in Cleveland, Ohio, which denied payment or reimbursement for unauthorized medical expenses incurred at Alliance Community Hospital on June 22, 2010. In October 2011, a Travel Board hearing was held before the undersigned; a transcript is associated with the record. The appeal is being REMANDED to the VAMC. VA will notify the appellant if action on his part is required. REMAND The Cleveland VAMC denied the appellant's claim for payment or reimbursement for unauthorized medical expenses incurred at Alliance Community Hospital on June 22, 2010, on the basis that he had third party insurance coverage that was primary to the VA coverage. The appellant has conceded that he has other health care coverage, but he argues that his civilian health care plan will not pay or reimburse him, in whole or in part, for the emergency treatment he received as a result of an accident on June 22, 2010, until he first meets his $2,500 deductible. Given these circumstances, he believes he meets all the regulatory criteria to receive reimbursement from VA for services rendered at a private medical hospital. Payment or reimbursement for emergency services for nonservice-connected conditions in non-VA facilities may be authorized under 38 U.S.C.A. § 1725 and 38 C.F.R. §§ 17.1000-1003. To be eligible for reimbursement under this authority, all of the following conditions must be satisfied: (a). The emergency services were provided in a hospital emergency department or a similar facility held out as providing emergency care to the public; (b). The claim for payment or reimbursement for the initial evaluation and treatment is for a condition 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 (this standard would be met if there were an emergency medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) that a prudent layperson who possesses an average knowledge of health and medicine could reasonably expect the absence of immediate medical attention to result in placing the health of the individual in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part); (c). A VA or other Federal facility/provider was not feasibly available and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson (as an example, these conditions would be met by evidence establishing that a veteran was brought to a hospital in an ambulance and the ambulance personnel determined that the nearest available appropriate level of care was at a non-VA medical center); (d). At the time the emergency treatment was furnished, the veteran was enrolled in the VA health care system and had received medical services under authority of 38 U.S.C. Chapter 17 within the 24-month period preceding the furnishing of such emergency treatment; (e). The veteran is financially liable to the provider of emergency treatment for that treatment; (f). The veteran has no coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the emergency treatment (this condition cannot be met if the veteran has coverage under a health-plan contract but payment is barred because of a failure by the veteran or provider to comply with the provisions of that health-plan contract, e.g., failure to submit a bill or medical records within specified time limits, or failure to exhaust appeals of the denial of payment); (g). If the condition for which the emergency treatment was furnished was caused by an accident or work related injury, the claimant has exhausted without success all claims and remedies reasonably available to the veteran or provider against a third party for payment of such treatment; and the veteran has no contractual or legal recourse against a third party that could reasonably be pursued for the purpose of extinguishing, in whole or in part, the veteran's liability to the provider; and (h). The veteran is not eligible for reimbursement under 38 U.S.C. 1728 for the emergency treatment provided (38 U.S.C. 1728 authorizes VA payment or reimbursement for emergency treatment to a limited group of veterans, primarily those who receive emergency treatment for a service-connected disability). See 38 C.F.R. § 17.1002. A review of the record received from the Cleveland VAMC found that evidence and documents relevant to the matter at hand appear to be missing; they are necessary for the Board to properly render a decision based on all pertinent facts. For example, in the December 2010 statement of the case (SOC) the VAMC cites to the appellant's claim having been received on September 13, 2010 and to its review and denial of the claim on September 15, 2010 (with letters sent to the appellant and vendor). Such documents are not in the record before the Board. Rather, it contains copies of medical records and billing statements for services rendered at Alliance Community Hospital on June 22, 2010 (many of which appear to have been received in October 2010 with the appellant's notice of disagreement), and a July 22, 2010 letter to the appellant notifying him that his claim was denied. Development for the outstanding records is needed to ensure that the Board's determination on this matter is based on a complete record. Moreover, the VAMC in its consideration of the appellant's claim has cited to expired provisions of the governing statutes and regulations. 38 U.S.C.A. § 1725 was amended by the Expansion of Veteran Eligibility for Reimbursement Act, Pub. L. No. 111-137, 123 Stat. 3495 (2010). Following that statutory amendment, VA amended (effective May 21, 2012) its regulations regarding payment or reimbursement for emergency services for nonservice-connected conditions in non-VA facilities. See 38 C.F.R. § 17.1002 (2013). Further, it does not appear that the VAMC considered the appellant's claim under other potentially applicable law. When a veteran receives treatment at a non-VA facility without prior authorization, there are two statute sections that provide for him to be paid or reimbursed for the medical expenses incurred for such treatment if required criteria are met, i.e., 38 U.S.C.A. §§ 1725 and 1728. Application of these is, in part, dependent on whether or not the claimant has a disability adjudicated to be service-connected. Here, the record before the Board does not show that the appellant's claim was considered under 38 U.S.C.A. § 1728. Accordingly, the case is REMANDED for the following: 1. Obtain for association with the record before the Board: the appellant's claim received on September 13, 2010, and the VAMC's denial of the claim on September 15, 2010 (with letters sent to the appellant and vendor), as reported in the December 2010 statement of the case. The VAMC should also secure the appellant's claims file (if one exists; if not, it should be co certified). 2. Then, readjudicate the claim. This should include consideration of all additional evidence received since the SOC, and of all currently applicable statutory and regulatory provisions including 38 U.S.C.A. § 1725 and § 1728 and 38 C.F.R. § 17.1002. If the appellant is determined to be ineligible for reimbursement under either statute, the VAMC should clearly explain its decision with citation to the applicable statute and regulations. If the claim remains denied, issue an appropriate supplemental SOC, and afford the appellant the opportunity to respond. Then return the case to the Board. 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 for additional development or other appropriate action must be handled in an expeditious manner. _________________________________________________ George R. Senyk 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 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 the appellant's appeal. 38 C.F.R. § 20.1100(b) (2013).