Citation Nr: 1400635 Decision Date: 01/08/14 Archive Date: 01/23/14 DOCKET NO. 09-31 814 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Tampa, Florida THE ISSUE Entitlement to payment of or reimbursement for medical treatment provided at a non-VA hospital from March 6, 2009, to March 29, 2009. ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran served on active duty from September 1960 to November 1962. He died in August 2010. The appellant here is the medical provider that treated the Veteran during his March 2009, admission to Brandon Regional Hospital, a non-VA medical facility. A claimant for payment or reimbursement under 38 U.S.C.A. § 1725 must be the entity that furnished the treatment, the Veteran who paid for the treatment, or the person or organization that paid for such treatment on behalf of the Veteran. 38 C.F.R. § 17.1004(a) (2013). Because the appellant-medical provider furnished the Veteran's treatment at issue, it has standing in this case. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a determination by the Department of Veterans Affairs Medical Center (VAMC) in Tampa, Florida (James A. Haley VA Hospital). In October 2013, the appellant-medical provider indicated that it does not wish to appear at a hearing. 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 Initially, the Board observes that the appellant-medical provider has not had the opportunity to appoint a representative. The power-of-attorney (POA) currently of record was not executed by the appellant in this claim. On remand, the agency of original jurisdiction (AOJ) should send the forms necessary to execute a POA. Further evidentiary development is also necessary. The VAMC adjudicated this claim pursuant to the Veterans Millennium Health Care and Benefits which provides general authority for payment or reimbursement for the reasonable value of emergency treatment furnished in a non-VA facility to those veterans who are active VA health-care participants (enrolled in the annual patient enrollment system and recipients of a VA care within the last 24-month period) and who are personally liable for such non-VA treatment and not eligible for reimbursement under the provisions of 38 U.S.C.A. § 1728. 38 C.F.R. §§ 17.1000-1008 (2013). The VAMC denied this claim because it determined that a medical emergency did not exist and that VA facilities were feasibly available to provide care to the Veteran. The applicable regulation for claims under Veterans Millennium Health Care and Benefits Act provides that all of the listed conditions must be met in order to establish eligibility for payment or reimbursement of unauthorized medical expenses. 38 U.S.C.A. § 1725; 38 C.F.R. § 17.1002. Included in the list of conditions is the requirement that a medical emergency must have existed and that the claimant have no coverage under a health-plan contract for the emergency treatment. 38 C.F.R. § 17.1002(a), (g). In its May 2009 notice of disagreement, the appellant-medical provider essentially asserted that a medical emergency did exist because during the Veteran's admission it treated him for several days in the Intensive Care Unit at Brandon Regional Hospital. There is also a question as to whether the Veteran has coverage under a health-plan contract. On the August 2009 substantive appeal, the appellant-medical provider indicated that the Veteran has Medicare Part A coverage, which reportedly paid Brandon Hospital in full for the services it provided to the Veteran. A Health Insurance Claim Form covering the March 6, 2009, service indicates that the Veteran has Medicare Part B, but a handwritten note next to that notation indicates "no Med B." A Health Insurance Claim Form covering March 12, 2009, medical services indicates that the Veteran had Medicare. In light of these issues, further clarification is needed prior to further appellate consideration. Accordingly, the case is REMANDED for the following action: *PLEASE TAKE NOTE THAT THE APPELLANT IN THIS CASE IS THE MEDICAL PROVIDER NOTED ABOVE. 1. Send the appellant-medical provider VA Form 21-22, "Appointment of Veterans Service Organization as Claimant's Representative," and VA Form 21-22a, "Appointment of Attorney or Agent as Claimant's Representative" with accompanying instructions. The appellant-medical provider should be notified that a POA must be executed on of these forms in order for VA to recognize an organization or individual as its representative. If the appellant-medical provider returns a properly completed POA form, it should be associated with the claims file. 2. The VAMC should take necessary action to clarify whether the VETERAN had Medicare coverage at the time of the treatment in question. All such records, including those pertaining to the dollar amount paid by Medicare and/or any other health-plan coverage for charges billed for medical expenses stemming from the March 2009 hospitalization at Brandon Regional Hospital, should be obtained and associated with the claims folder. All attempts to secure this evidence must be documented in the claims file by the VAMC. 3. Request a VA medical opinion from a qualified physician with regard to the duration and severity of any medical emergency the Veteran experienced while an inpatient at Brandon Regional Hospital from March 6, 2009, to March 29, 2009. The claims folder must be provided to and reviewed by the examiner in conjunction with the opinion. After a review of the record, a VA physician is asked to answer the following: When the Veteran was transferred from South Bay Baptist Hospital for cardiac catheterization on March 6, 2009, did he continue to experience a medical emergency during his hospitalization at Brandon Regional Hospital between March 6, 2009, and March 29, 2009? If he became stable after his transfer, did a new medical emergency arise during his hospitalization at Brandon Regional Hospital between March 6, 2009, and March 29, 2009? ****Specific consideration should be given to the appellant-medical provider's argument that a medical emergency existed because one of its physicians treated the Veteran in the Intensive Care Unit at Brandon Hospital on March 12-16, 2009, and from March 18, 2009 through March 22, 2009. See May 2009 NOD. The VA physician must include in the examination report a complete explanation, understandable to laypersons, for any opinion expressed. However, if the examiner cannot respond to the inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion. 4. Then readjudicate the claim on the merits. If the benefit sought is not granted, the APPELLANT-MEDCAL PROVIDER and any appointed representative should be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further 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. 2013). _________________________________________________ Vito A. Clementi 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).