Citation Nr: 1400239 Decision Date: 01/06/14 Archive Date: 01/23/14 DOCKET NO. 10-27 326A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Gainesville, Florida THE ISSUE Entitlement to payment or reimbursement for the cost of medical treatment provided at St. Luke's Hospital from September 26, 2009 to September 28, 2009. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from February 1965 to September 1984. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from a February 2010 decision of the Department of Veterans Affairs Medical Center (VAMC) in Gainesville, Florida. 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 Veteran seeks payment or reimbursement for medical care received from September 26, 2009 to September 28, 2009 at St. Luke's Hospital. Private treatment records indicate that the Veteran presented to the emergency room with abdominal pain and constipation on September 24, 2009. VA determined that payment was only authorized prior to September 26, 2009, the date that the Veteran's condition had stabilized. September 26, 2009 was determined to be the stabilization date because the private physician noted that on September 26, 2009, the Veteran stated that he was feeling better and that he was not experiencing shortness of breath, nausea, vomiting, or diarrhea. The laws and regulations governing payment or reimbursement for medical care changed three times since the issuance of the June 2010 Statement of the Case. See 38 U.S.C.A. §§ 17.107, 17.106 (Effective July 25, 2011) (VA amended its regulations concerning the reimbursement of medical care and services delivered to veterans for nonservice-connected conditions in situations where third-party payers are required to reimburse VA for costs related to care provided by VA to a veteran covered under the third-party payer's plan); 38 U.S.C.A. §§ 17.120, 17.121, 17.1001, 17.1002, 17.1005, 17.1006, 17.1008 (Effective January 20, 2012) (VA amended its regulations to require it to reimburse the covered costs for emergency care received at non-VA facilities for eligible veterans under §§ 1725 and 1728, extended VA's payment authority for emergency treatment received at a non-VA facility, and made the definition of "emergency treatment" in § 1725(f)(1) applicable to § 1728); and 38 C.F.R. §§ 17.1001, 17.1002, 17.1004, 17.1005 (Effective May 21, 2012) (VA expanded the qualifications for payment or reimbursement to veterans who receive emergency services in non-VA facilities, established accompanying standards for the method and amount of payment or reimbursement, and provided retroactive payment or reimbursement for emergency treatment received by a veteran in certain circumstances). Specifically, it appears that changes were made to the pertinent regulation, 38 C.F.R. § 17.1002(d), eliminating the requirement that the medical emergency lasts only until the time the veteran becomes stabilized. These provisions appear to have some potential retroactive application to claims filed before that date. Id. Therefore, a remand is required to provide the claimant with notice of these changes and to determine whether any of the changes apply to the Veteran's claim. 38 C.F.R. § 19.31 (2013). In addition, the Veteran has provided inconsistent requests concerning whether he desires a hearing before a Veterans Law Judge. On a VA Form 9, Appeal to the Board of Veterans' Appeals, received in June 2010, the Veteran indicated that he desired a hearing before a member of the Board sitting at the RO (Travel Board hearing). On a VA Form 9 received in July 2010, he indicated that he did not want a hearing. Thus, the Veteran should be asked to clarify whether or not he desires a Travel Board hearing. Accordingly, the case is REMANDED for the following action: 1. The AMC/VAMC should provide the Veteran with updated notice of the changes to the laws and regulations governing payment or reimbursement for medical care found at 38 U.S.C.A. §§ 17.107, 17.106 (Effective July 25, 2011); 38 U.S.C.A. §§ 17.120, 17.121, 17.1001, 17.1002, 17.1005, 17.1006, 17.1008 (Effective January 20, 2012); and 38 C.F.R. §§ 17.1001, 17.1002, 17.1004, 17.1005 (Effective May 21, 2012). 2. Thereafter, the AMC/VAMC should readjudicate the claim. Such readjudication should take into account all amendments to the controlling laws and regulations found at 38 U.S.C.A. §§ 17.107, 17.106 (Effective July 25, 2011); 38 U.S.C.A. §§ 17.120, 17.121, 17.1001, 17.1002, 17.1005, 17.1006, 17.1008 (Effective January 20, 2012); 38 C.F.R. §§ 17.1001, 17.1002, 17.1004, 17.1005 (Effective May 21, 2012); and the specific changes found in 38 C.F.R. § 17.1002(d). If such action does not grant the benefit claimed, the RO should provide the Veteran and his representative a Supplemental Statement of the Case and an appropriate period of time should be allowed for response. In addition, the Veteran should be asked to clarify whether he desires either a Travel Board hearing or videoconference hearing. 3. Thereafter, the case should be returned to this Board for appellate review. 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). _________________________________________________ Rebecca Feinberg Acting 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) (2012).