Citation Nr: 1603520 Decision Date: 02/02/16 Archive Date: 02/11/16 DOCKET NO. 13-11 752 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in North Florida/South Georgia Veterans Health System in Gainesville, Florida THE ISSUE Entitlement to reimbursement or payment for the cost of private medical services provided to the appellant at St. Vincent's Medical Center in Jacksonville, Florida, on September 8, 2012, and for the period from September 9, 2012 through September 14, 2012. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD M. Peters, Counsel INTRODUCTION It appears that the appellant had active duty service from March 1988 to February 1992, although there is no confirmation of this in the medical reimbursement file/Combined Health Record (CHR); Veterans Benefits Management System (VBMS), however, does demonstrate that these dates of service are verified. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 letter of determination by the Department of Veterans Affairs (VA) Medical Center (MC) in Gainesville, Florida, which denied the appellant reimbursement or payment for medical services obtained at St. Vincent's Medical Center from September 8, 2012 to September 14, 2012. The appellant timely appealed that decision. The appellant testified at a Board hearing before the undersigned Veterans Law Judge in January 2015; a transcript of that hearing is associated with the claims file. This case was last before the Board in March 2015, when it was remanded for further development. The case has been returned to the Board for further appellate review at this time. The appeal is again REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND First, in the previous March 2015 remand, the Board requested that either a physical copy of the claims file be obtained and associated with the medical reimbursement file/CHR-or that the claims file be uploaded into VBMS-in order for the Board to confirm the appellant's dates of service and whether he had any service-connected disabilities. A review of the medical reimbursement file/CHR at this time shows that the appellant's physical claims file has not been obtained, nor has any further documentation been added to VBMS since the Board's previous remand, aside from the informal hearing presentation from the Veteran's representative following the issuance of the June 2015 supplemental statement of the case. The first remand instruction was clearly not complied with. The second remand instruction appears to have been followed, as the medical reimbursement file/CHR now contains private treatment records from September 8, 2012 from St. Vincent's Medical Center. Additionally, in the June 2015 supplemental statement of the case, the VAMC indicated that they called St. Vincent's Medical Center and was informed that no additional payment from any source had been obtained for the noted care rendered, although there is no documentation of the phone call in the medical reimbursement file/CHR. Regardless, the Board therefore finds that this instruction was substantially complied with. Moreover, the appellant was sent the appropriate notice letter with the June 2015 supplemental statement of the case, which substantially complies with the third remand instruction. However, respecting remand instructions 4 through 6, the VAMC indicated, in the June 2015 supplemental statement of the case, that the referred to medical opinion was obtained from a VA Physician on September 8, 2012, when the appellant sought "non-emergent treatment" from VA; the VA Physician's opinion appears to be that the appellant was non-emergent, refused to stay at the VA facility, and left against medical advice. After review of the claims file, there are no VA treatment records or VA Physician's opinion from September 8, 2012 in the claims file; therefore, the Board cannot find that there has substantial compliance with remand instruction 4, and there appears to be outstanding VA treatment records. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Moreover, the Board requested an addendum opinion regarding emergent condition based on the appellant's private treatment records from St. Vincent's Medical Center from September 8, 2012 through September 14, 2012; such was clearly not performed and instead the VAMC relied on the September 8, 2012 VA Physician's opinion that the appellant was non-emergent at the time of treatment with VA-that document that does not exist in the claims file at this time, and in any regard, would not even address the requested addendum opinion. Thus, it appears to the Board that there was no attempt to comply with remand instruction 5. Finally, there is no documentation in the records that would document that even if the appellant had requested a transfer to the VA facility, that transfer would have been accepted and that the VAMC was able to accommodate the appellant at that time. Thus, the Board must find that there is not substantial compliance with remand instruction 6 as well. Consequently, the VAMC has also left open the question as to whether the Gainesville VA Medical Center was even feasibly available to the appellant given the length of time (1.5 hours) and the distance (approximately 65 miles) that facility is from the appellant's home. In light of the several deficiencies and the clear noncompliance with almost the entire previous remand, the Board finds that it must again remand the claim at this time. See Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). Accordingly, the case is REMANDED for the following action: 1. A physical copy of the claims file must be associated with the medical reimbursement file/CHR or the entirety of the physical claims file (non-medical reimbursement claims file) should be scanned and uploaded into VBMS so that the Board has access to the entire claims file. No other development should even be attempted until this remand instruction has been completed. 2. Obtain and associate with the claims file (or upload into VBMS) any and all VA treatment records that exist for September 8, 2012 pertaining to the appellant and any treatment he sought on that day from any VA medical facility, including the September 8, 2012 VA Physician's opinion which apparently indicated that the appellant was non-emergent at the time of his VA treatment on that date. Merely noting the document's existence in CAPRI is not sufficient, but rather that document must be associated with the claims file or uploaded into VBMS for review. If no such documents exist, or they cannot be obtained and associated with the claims file, then a memorandum of unavailability must be drafted and associated with the claims file instead, and the appellant should be so notified. 3. After the above has been obtained and associated with the claims file, or whether such has been uploaded and exists in VBMS so that review of the documents is available, send the claims file to an appropriate physician in order to obtain an addendum opinion as to whether the appellant's condition was emergent upon entrance into care at St. Vincent's Medical Center on September 8, 2012, and whether the appellant was stable enough for transfer to a VA facility after being hospitalized on September 9, 2012. The examiner is reminded that whether a condition is emergent or not is determined by the following standard: a condition is considered emergent if a prudent layperson would reasonably expect that delay in seeking immediate medical treatment would be hazardous to life and/or health. The examiner should focus on whether the appellant's condition was emergent at the time he sought treatment at St. Vincent's Medical Center and not whether the appellant's condition was emergent prior to that time when he apparently sought treatment with VA. Also, in rendering the above opinion, the physician should specifically address the appellant's lay statements of record, particularly from his January 2015 hearing, regarding his state of mind at the time of treatment at St. Vincent's Medical Center from September 8, 2012 through September 14, 2012. All opinions must be accompanied by an explanation. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 4. Request information from the Gainesville VA Medical Center regarding whether, any time from September 8, 2012 through September 14, 2012, there was actual availability to accept the appellant's transfer when the appellant had stabilized, based on the above obtained medical opinion. The VAMC should additionally address whether the Gainesville VA Medical Center was actually feasibly available to the appellant, as it appears that facility was approximately 65 miles and an estimated 1.5 hour travel time from the appellant's home, rather than the approximately 8 miles and 15 minute travel time to St. Vincent's Medical Center. 5. Finally, prior to any adjudicatory action taken, the VAMC should make sure that the other information required for processing a claim under 38 U.S.C.A. §1728, and under 38 U.S.C.A. § 1725 and the Veterans Millennium Health Care and Benefits Act, have been properly obtained and associated with the claims file, including whether the appellant was properly enrolled with VA for such coverage, whether the appellant had any third-party insurance carrier at the time of treatment from September 8, 2012 through September 14, 2012, etc. 6. Following any additional indicated development, the VAMC should review the claims file and readjudicate the appellant's medical reimbursement claim. If the benefits sought on appeal remain denied, the appellant and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. 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 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 2014). _________________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).