Citation Nr: 1340049 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 13-23 987 ) DATE ) ) Received from the Department of Veterans Affairs, Veterans Health Administration (VHA) in Denver, Colorado THE ISSUE Entitlement to payment or reimbursement for medical care provided by Clearwater Valley Hospital on January 24, 2012. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from January 1962 to April 1966. This case is before the Board of Veterans' Appeals (Board) on appeal from a December 2012 decision by the Department of Veterans Affairs (VA) Payment Center in Portland, Oregon. Jurisdiction over the appeal currently resides with the VHA in Denver, Colorado. The appeal is REMANDED to the VHA via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Initially, the Board notes that while the record includes a number of treatment records from Clearwater Valley Hospital dated in January 2012, these records do not include his medical records from his January 24, 2012, visit. Therefore, the Board finds that a remand is required to obtain and associate these records with the claims file. See 38 C.F.R. § 19.9 (2012); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992) (holding that when reference is made to pertinent records, VA is on notice of their existence and has a duty to assist the Veteran to attempt to obtain them). Next, the Board notes that a January 25, 2012, treatment record from Clearwater Valley Hospital documents the Veteran's complaints of chest pain since the January 24, 2012, fall that led to the treatment in question. Therefore, the Board also finds that a remand is required to obtain a medical opinion as to whether the care that the Veteran received was rendered in a medical emergency as defined by controlling laws and regulations. See 38 U.S.C.A. § 1725, 1728 (West 2012 & Supp. 2012); 38 C.F.R. §§ 17.120, 17.1000-1008 (2012). The United States Court of Appeals for Veterans Claims (Court) has held that when the Board addresses in its decision a question it must consider whether the Veteran has been given adequate notice of the need to submit evidence or argument on the question, whether he has been given an adequate opportunity to actually submit such evidence and argument, and whether the statement of the case provided the veteran fulfills the regulatory requirements. See 38 C.F.R. § 19.29 (12012). If not, the matter must be remanded to avoid prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384, 393 (1993); 38 C.F.R. §§ 19.9, 19.29, 19.31 (2012). With the above criteria in mind, the Board also finds that a Remand is required because the June 2013 statement of the case, which only includes a citation to 38 C.F.R. § 17.55, fails to provide the Veteran with adequate notice of all the laws and regulations governing his claim for payment or reimbursement for medical care. See 38 U.S.C.A. §§ 1703, 1710, 1725, 17.28 (West 2002 & Supp. 2012); 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120, 17.121, 17.130, 17.1000, 17.1001, 17.1002, 17.1003, 17.1004, 17.1005, 17.1006, 17.1008 (2012). Accordingly, the appeal is REMANDED to the AMC/VHA for the following actions: 1. The AMC/VHA should obtain and associate with the record the Veteran's treatment records from his January 24, 2012, visit to Clearwater Valley Hospital. If the records are not available, or if the search for the records yields negative results, that fact should clearly be documented in the claims file and the Veteran notified in writing. 2. As to any claim that the Veteran received prior authorization under 38 U.S.C.A. §§ 1703, 1710 (West 2002 & Supp. 2012); 38 C.F.R. §§ 17.52, 17.53, 17.54 (2012), the AMC/VHA should undertake all appropriate development and make a finding as to whether the Veteran met the regulatory criteria. 3. As to the claim for reimbursement of unauthorized medical expenses under the provisions of 38 U.S.C.A. § 1728 (West 2002 & Supp. 2012) and 38 C.F.R. § 17.120 (2012) as well as under 38 U.S.C.A. § 1725 (West 2002 & Supp. 2012) and 38 C.F.R. §§ 17.1000-1008 (2012) (The Veterans Millennium Health Care and Benefits Act), the AMC/VHA should forward the claim's file to an appropriate VA healthcare provider to obtain answers to the following questions after a review of the record on appeal: (a) Is it at least as likely as not (50 percent probability or more) that the medical treatment provided the Veteran on January 24, 2012, was 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? (b) Is it at least as likely as not (50 percent probability or more) that on January 24, 2012, a VA or other Federal facilities were not feasibly available and an attempt to use them beforehand or obtain prior VA authorization for the services required would not have been reasonable, sound, wise, or practicable, or treatment had been or would have been refused? In providing answers to the above questions, the examiner is advised that the term at least as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. 4. Thereafter, the AMC/VHA should readjudicate the claim. Such readjudication should take into account whether the Veteran had prior authorization for the treatment under 38 C.F.R. §§ 17.52, 17.53, 17.54 as well as entitlement to reimbursement of unauthorized medical expenses under 38 U.S.C.A. § 1728 and the Millennium Health Care and Benefits Act (see 38 U.S.C.A. § 1725). 5. If any of the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence received, and any evidence not received, and all applicable laws and regulations considered pertinent to the issue currently on appeal including 38 U.S.C.A. §§ 1703, 1710, 1725, 17.28 (West 2002 & Supp. 2012); 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120, 17.121, 17.130, 17.1000, 17.1001, 17.1002, 17.1003, 17.1004, 17.1005, 17.1006, 17.1008 (2012). A reasonable period of time should be allowed for response. 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 or by the Court 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 Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).