Citation Nr: 1342131 Decision Date: 12/19/13 Archive Date: 12/31/13 DOCKET NO. 13-14 896 ) 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 Providence Sacred Heart Medical Center from February 9, 2012, to February 10, 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 February 1969 to February 1971. This case is before the Board of Veterans' Appeals (Board) on appeal from an April 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 The record reflects that during the hospitalization at issue, the Veteran underwent the placement of sub-clavicular deep brain stimulator generators with extension to frontal deep brain stimulator electrodes. This apparently occurred a week after the Veteran underwent bilateral subthalamic deep brain stimulator electrode implants. Medical payment reimbursement was denied by the agency of original jurisdiction because the procedure was deemed not to be an emergency, and VA facilities were available. The Veteran's wife, on his behalf, has argued this should be deemed an emergency, and in any event, she had sought out and obtained permission for the procedure to go forward. The record does not include either a copy of the authorization for the procedure or, after an investigation, a finding that such authorization was not provided. Therefore, the Board finds that a remand is required to obtain and associate with the record either the authorization or a memorandum outlining VA's attempts to find that authorization. Further, an individual with appropriate credentials should express an opinion as to whether the procedure at issue 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). Lastly, the January 2013 statement of the case, only includes a citation to 38 C.F.R. § 17.55, and 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. As to the 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), for the procedure at issue, the AMC/VHA should undertake all appropriate development and make a finding as to whether the Veteran met the regulatory criteria. This development should include an attempt to obtain and associate with the record the authorization the Veteran's wife reportedly was given from the Spokane VA office for the treatment he received at the Providence Sacred Heart Medical Center from February 9, 2012, to February 10, 2012. If the record is not available, or if the search for the record yields negative results, a memorandum of unavailability should be prepared that outlines in detail all actions the AMC/VHA took to obtain the authorization and the Veteran should be notified in writing of its unavailability. 2. 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 from February 9, 2012, to February 10, 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) From February 9, 2012, to February 10, 2012, was a VA or other Federal facility feasibly available for the treatment provided, but that 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? 3. 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). 4. 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 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). _________________________________________________ MICHAEL E. KILCOYNE 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).