Citation Nr: 1605948 Decision Date: 02/17/16 Archive Date: 03/01/16 DOCKET NO. 13-28 354A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center (VAMC) in Albuquerque, New Mexico THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred as a result of treatment at Socorro General Hospital on July 31, 2012. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Suzie Gaston, Counsel INTRODUCTION The Veteran served on active duty from February 2, 1982 to November 14, 1988 and from July 25, 1990 to February 14, 1991. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a September 2012 decision by the Department of Veterans Affairs Medical Center (VAMC) in Albuquerque, New Mexico, which denied the Veteran's claim of entitlement to payment or reimbursement of unauthorized medical expenses incurred as a result of treatment at Socorro General Hospital on July 31, 2012. The Veteran perfected a timely appeal of that decision. On October 20, 2015, the Veteran appeared at the RO and testified at a videoconference hearing before the undersigned Veterans Law Judge, sitting in Washington, DC. A transcript of the videoconference hearing has been uploaded into the VBMS eFolder. The Board has reviewed the Veteran's physical claims file, as well as the Veteran's Virtual VA and VBMS efolders to ensure a complete review of the evidence in this case. The issue of entitlement to payment or reimbursement of unauthorized medical expenses incurred as a result of treatment at Socorro General Hospital in August 2012 has been raised by the record at the October 2015 Board hearing (see page 2 of transcript), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ)/VAMC. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ/VAMC for appropriate action. 38 C.F.R. § 19.9(b) (2015). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks payment or reimbursement of unauthorized medical expenses incurred as a result of treatment at Socorro General Hospital on July 31, 2012. The Veteran essentially contends that the unauthorized emergency treatment he received on that date was emergent in nature. After review of the Medical Administration Services (MAS) file and the claims file maintained by the Regional Office, the Board concludes that further assistance to the Veteran is required in order to comply with the duty to assist as mandated by 38 U.S.C.A. § 5103A (West 2014). The specific bases for remand are set forth below. The Veteran has claimed reimbursement for emergency medical expenses incurred at a non-VA hospital from a July 31, 2012 emergency room visit. At his personal hearing in October 2015, the Veteran indicated that he lives in Socorro, which is over one hour away from the VA hospital in Albuquerque. The Veteran indicated that, on the day in question, he was having some problems with his skin; he had fluid oozing from his head and temple area. He had a pile of tissues from wiping his head so much. The Veteran stated that he called the VA and told them that he did not have a ride (he wears a brace and receives aid and attendance); he told them that he lives by himself and could not drive to the VA hospital. The Veteran related that the fee basis clinic told him to just go to Socorro and they would deal with the situation later. The Veteran stated that, upon arriving at the hospital, he was immediately placed on IV and given lots of fluids and antibiotics. When they realized that he was a Veteran, he was told that he needed to get to the VA; at which point, he indicated that he needed a ride to go to the VA. He called his daughters who live in Albuquerque; they picked him up and took him to the VA. At the VA hospital, he was given two injections and placed on IV. The Veteran reported that he has been receiving treatment, medications and creams for his skin condition long before the incident. The Veteran indicated that he has been seeing the dermatologist at the VA hospital in Albuquerque on a regular basis. The Veteran stated that, when he called fee basis in Albuquerque, he told them that he could not drive and did not have a ride and that he was so far away; so, they told him to just go to emergency. A couple of days after his emergency room visit, he had his regular appointment with VA dermatology in Albuquerque. The Veteran is service connected for traumatic arthritis of the lumbar spine, evaluated as 40 percent disabling; right tibia/ankle, status post pilon fracture, with open reduction and retained hardware residuals, evaluated as 40 percent disabling; traumatic arthritis, right knee, evaluated as 30 percent disabling; residuals of fracture, left femur, one inch shortening, evaluated as 10 percent disabling; and degenerative changes and degenerative disc disease, evaluated as 10 percent disabling. He has a combined disability rating of 80 percent. He has also been granted a total disability rating based on individual unemployability effective from July 1, 1994. The MAS file notes that the Veteran is rated permanently totally disabled. The records indicate that, on July 31, 2012, the Veteran presented to the emergency room with a chief complaint of a rash on his face and scalp; he noted that the problem started about 7 days ago. The Veteran indicated that he had been using medications that help, but he ran out of it. He also noted that he was unable to see a doctor at the VA that day. On examination, it was noted that the skin was warm and dry. The clinical assessment was tinea capitis. The Veteran was discharged the same day in a stable condition. It is noteworthy that, a clinical tracking record, dated in June 7, 2013, indicates that the Veteran contacted the VA on July 31, 2012 and stated that he was going to the ER for extreme itching and a little sore on his face. The report noted that it was "explained to him there was no guarantee of payment by the VA." The Board is unable to address the claim at this time as a review of the record shows that it is incomplete. Specifically, the October 2013 Statement of the Case (SOC) documents that following clinical review of the claim on September 24, 2012, the claim was denied as it was determined that treatment provided to the Veteran at Socorro on July 31, 2012 was non-emergent, not related to a service-connected disability, and a VA facility was feasibly available. The SOC further documents that the claim was reviewed by a second clinical reviewer who subsequently upheld the denial of the claim on January 7, 2013. The aforementioned documents alluded to in the October 2013 SOC have not been associated with the file that was provided to the Board. Moreover, a clinical tracking record, dated June 7, 2013, indicates that the second clinical reviewer found that the care provided to the Veteran on July 31, 2012 was non-emergent. However, neither the Veteran's MAS file nor claims folder contains any documentation from which such a determination can be reached. In addition, while the SOC indicates that the services provided were not provided in a medical emergency of such nature that delay would have been hazardous to life or health, no explanation was provided for this assertion. Moreover, the Veteran's claim was denied based on a finding that VA facilities were feasibly available to provide the care that was provided at Socorro General Hospital. The Board notes, however, that there is no specific information in the Veteran's MAS file regarding the geographic accessibility of the nearest VA medical facility. These questions must be addressed by a VA physician in order to properly adjudicate the claim. Furthermore, in his substantive appeal (VA Form 9), dated in October 2013, the Veteran maintained that the VA doctor who examined him following his emergency care visit noted that he had severe eczematous dermatitis and possible liver dysfunction leading to thrombocytopenia/lymphopenia. However, a review of the Veteran's MAS file reveals that no VA treatment notes are currently of record. These medical records are necessary to determine whether a medical emergency was present at the time the Veteran sought treatment on July 31, 2012. The Board finds that a VA medical opinion is necessary to determine whether the care provided on July 31, 2012, at Socorro General Hospital was for an emergent condition and whether a VA facility was feasibly available. In light of the discussion above, and to ensure full compliance with due process requirements, the case is hereby REMANDED to the agency of original jurisdiction (AOJ) for the following actions: 1. Obtain and associate with the Veteran's file all VA medical records from the Albuquerque VAMC and any associated outpatient clinics for the period from 2011 to the present. 2. Obtain and associate with the file all documents associated with the initial clinical review and denial of the claim as alluded to in the October 2013 SOC; all documents associated with a second clinical review of the claim and the clinical reviewer's decision to uphold the previous denial of the claim on January 7, 2013, as alluded to in the October 2013 SOC; and the February 8, 2013 notice to the Veteran that the previous denial of the claim was upheld. 3. Thereafter, the Veteran's entire record should be forwarded to an appropriate VA health care provider who, after reviewing the record in its entirety, should address the following: a) whether any of the medical services of July 31, 2012, were rendered within the context of a medical emergency of such a nature that delay would have been hazardous to the life or health of the Veteran; b) whether given the Veteran's symptomatology, would it have been feasible on July 31, 2012, to seek treatment at the nearest VA facility. In making these determinations, the reviewing official should consider the urgency of the Veteran's medical condition at the time, the relative distance of the travel involved, the nature of the treatment involved, and the length of any delay that would have been required to obtain treatment from a VA facility. The opining health care provider should include a thorough explanation of all opinions rendered without resorting to speculation. 4. The MAS should thereafter readjudicate the issue of entitlement to payment or reimbursement of unauthorized medical expenses associated with private hospital treatment provided on July 31, 2012. If the decision remains adverse to the Veteran, he should be provided with a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include the applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response before the case is returned to the Board. 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). (CONTINUED ON NEXT PAGE) 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). _________________________________________________ TANYA SMITH 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).