Citation Nr: 1502409 Decision Date: 01/16/15 Archive Date: 01/27/15 DOCKET NO. 12-33 756 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Saginaw, Michigan THE ISSUE Entitlement to reinstatement of Department of Veterans Affairs (VA) fee-basis identification (ID) card. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD J.R. Bryant INTRODUCTION The Veteran, who is the appellant, served on active duty in the United States Marine Corps from January 1968 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) from an August 2011 decision issued by the Department of Veterans Affairs (VA), Medical Center (MC) in Saginaw, Michigan, which denied entitlement to continued authorization to receive fee-basis outpatient treatment. In May 2014, the Veteran testified before the undersigned Acting Veterans Law Judge sitting at the Detroit RO. A transcript is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that the evidence currently of record is insufficient to decide this claim and that further evidentiary development is therefore needed before a decision can be reached on the merits. A review of the Veteran's claims file and Consolidated Health Record (CHR) folder shows that he is service connected for schizophrenia, rated as 100 percent disabling and Parkinson's disease, rated as 30 percent disabling. He was in receipt of authorization for private fee-basis outpatient treatment at VA expense until August 2011, when such authorization discontinued. According to a statement of the case, issued by the Saginaw VAMC in October 2011, it was determined that the Oscoda VA Community Based Outpatient Clinic (CBOC) was available to provide medical services in the Veteran's area. Under the applicable criteria, when VA facilities are not capable of furnishing economical hospital care or medical services because of geographical inaccessibility, or are not capable of furnishing the care or services required, the Secretary, as authorized in § 1710 of this title, may contract with non-VA facilities in order to furnish hospital care or medical services to a veteran for the treatment of a service-connected disability or any disability of a veteran who has a total disability permanent in nature from a service-connected disability. 38 U.S.C.A. § 1703(a) and 38 C.F.R. § 17.52. Appellate jurisdiction of the Board extends to questions of eligibility for hospitalization, outpatient treatment, and nursing home and domiciliary care; for devices such as prostheses, canes, wheelchairs, back braces, orthopedic shoes, and similar appliances; and for other benefits administered by the Veterans Health Administration. However, medical determinations, such as determinations of the need for and appropriateness of specific types of medical care and treatment for an individual, are not adjudicative matters and are beyond the jurisdiction of the Board. See 38 C.F.R. § 20.101. In Meakin v. West, 11 Vet. App. 183 (1998), the United States Court of Appeals for Veterans Claims (the Court) held that the Board had jurisdiction to decide whether a claimant was eligible for fee-basis medical care. The Court held that in determining whether a claimant would be entitled to fee basis outpatient medical care, it must be established not only that he is a veteran and that he seeks treatment for a service- connected disability, but also that VA facilities are either (1) geographically inaccessible, or (2) not capable of providing the care or services that the claimant requires. With regard to the latter, the Court held that the determination of whether a VA facility was capable of furnishing specific care or services did not involve a medical determination, as does the question of the "need for and appropriateness of specific types of medical care and treatment," as contemplated by 38 C.F.R. § 20.101. The Veteran now contends that termination of his fee basis card has caused unneeded stress due to the distance (50-60 miles) that he is now required to travel for treatment. During his hearing he testified that private physicians/facilities were only 5 miles away and that the additional miles and travel time to the VA facility are a major inconvenience. He also testified that he wished to continue treatment with the private medical providers with whom he has established beneficial and long-term relationships. The Veteran's claims file and Consolidated Health Record (CHR) folder includes an August 2011 letter from the Veteran's private psychologist stating that Veteran had been a patient continuously for more than 20 years seeing him in the office at least once every three months. He noted that the Veteran was very upset and distressed that his fee basis ID card had been terminated and that severing the Veteran's well-established relationships with his local medical providers after 20 years would undoubtedly be detrimental to his physical and mental wellbeing. The Board observes that no one from the VAMC has specifically addressed this opinion, and that none of the Veteran's medical treatment records are contained in the file before us. Unfortunately, the Board is unable to address his contentions or otherwise reach a determination in this appeal as there is no discussion of the Veteran's current medical conditions, the level of care his disabilities require, or how frequently he requires treatment or of the specific services VA can provide. There is also no discussion of the relative distance of the travel involved, how much time and effort would be involved in traveling considering the Veteran's conditions, and how this would impact his physical and mental conditions. In addition there is no indication that the VAMC sought records from the Veteran's fee-basis providers or the Oscoda CBOC. Consequently, the Board finds that it is prevented from making a fully-informed determination on this issue, as the case has not been properly developed to address these matters. Such development must be undertaken prior to an adjudication of the appeal. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims folder or Virtual VA/VBMS folders (as appropriate) copies of all clinical records from the Oscoda CBOC. The VAMC must also obtain all available records from the private treatment providers from whom the Veteran has received fee-basis outpatient medical care including, but not limited to M.S. Ossian, M.D. in Sterling Michigan; J. Bash, D.O in West Branch, Michigan; K. Nasrallah, M.D., in West Branch, Michigan, and the Primary Care Clinic, located in Prescott, Michigan (referred to by the Veteran during the May 2014 Board hearing). Provide the Veteran with the necessary forms for release for any private treatment records identified. The Veteran should be notified if any private records sought are not received pursuant to the VAMC's request (and reminded that ultimately it is his responsibility to ensure that private records are received). If any records are unavailable, do not exist, or further attempts to obtain them would be futile, document this fact in the claims file. 2. The VAMC should obtain and incorporate into the file documentary evidence that the Veteran's specific care, services and treatment needs are available to him at a VAMC, specifically the Oscoda CBOC. 3. Ensure that the requested actions have been completed (to the extent possible) in compliance with this REMAND. If any report is deficient, it must be returned to the examiner for necessary corrective action, as appropriate. 4. The VAMC should review the relevant evidence and readjudicate the claim seeking a reinstatement of fee-basis authorization. The evidentiary record on which this determination is based should reflect objective, documentary proof of all alleged facts. The written report of such determination (a copy of which must be added to the file) should reflect a discussion of the reasons for the decision. If the claim is not fully granted, a supplemental statement of the case should be issued and the claims file should be returned to the Board for further consideration. The Veteran 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 United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).