Citation Nr: 1620472	
Decision Date: 05/19/16    Archive Date: 05/27/16

DOCKET NO.  15-00 963	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Orlando, Florida


THE ISSUE

Entitlement to payment or reimbursement of unauthorized medical expenses incurred during private treatment at Florida Hospital on January 4, 2014.

(The issues of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, and service connection for a gastrointestinal disorder is addressed in two other separate Board decisions). 


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Paul S. Rubin, Counsel


INTRODUCTION

The Veteran had active duty service in the U.S. Marine Corps from February 1973 to September 1975 and in the U.S. Air Force from February 1985 to October 1985.  He also served in the Air Force Reserve, Marine Corps Reserve, and Army and Air National Guards of various states from 1975 to 1995.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 decision by the Department of Veterans Affairs (VA) Medical Center (VAMC) in Orlando, Florida.

A review of the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS) reveals additional attorney letters and Veterans Service Organization (VSO) briefs that have been reviewed by the Board.   

The Veteran requested a Travel Board hearing at the RO during the course of the appeal.  A Travel Board hearing was scheduled for July 2015.  However, the Veteran cancelled that request in June 2015.  Therefore, the Travel Board hearing request is considered withdrawn.  See 38 C.F.R. § 20.704(e) (2015).  

Two other separate Board decisions are being rendered for the issues of entitlement to service connection for an acquired psychiatric disorder (to include PTSD) and service connection for a gastrointestinal disorder.  In this regard, the Veteran has chosen two different representatives with respect to the three separate issues he has appealed to the Board.  Specifically, with regard to the acquired psychiatric disorder / PTSD issue, he has chosen an attorney to represent him for that issue only, per the terms of a September 2011 power of attorney.  With regard to the unauthorized medical expenses issue on appeal in the present decision, the American Legion is the default representative.  In fact, the American Legion submitted a March 2016 Brief on VBMS for the unauthorized medical expenses issue.  In addition, the issue of unauthorized medical expenses has a different Agency of Original Jurisdiction (AOJ), and is based on completely different laws and facts than the other two issues the Veteran has appealed.  
According to BVA Directive 8430, Board of Veterans' Appeals, Decision Preparation and Processing, paragraph 14(c)(11), if different representatives acted with respect to different issues, a separate decision should be issued for the issues addressed by each representative.  Moreover, according to BVA Directive 8430, paragraphs 14(c)(1) and (10), if different issues have two or more AOJs, or are based on completely different law or facts, a separate decision should be issued for each issue.  Thus, the unauthorized medical expenses issue on appeal is entitled to a separate Board decision.  

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 to establish his entitlement to payment or reimbursement for medical care expenses at Florida Hospital in Orlando, Florida, on January 14, 2014.  He asserts that VA facilities were not feasibly available as he was not able to reach the VAMC in Orlando, Florida by telephone. And that the facility was closed as it was the weekend.  He had just recently moved to Florida and was not aware of the normal VA protocol for obtaining emergency medical care.  He also stated he could not get transportation to visit the VAMC.  Finally, he has also asserted that a medical emergency existed because his angioma of the lip was causing pain and was worsening over three days.  See January 2014 Veteran's statement; July 2014 Notice of Disagreement (NOD); November 2014 VA Form 9.  

There are two avenues for obtaining payment or reimbursement for the expenses of private medical care, which are found under the statutory provisions of 38 U.S.C.A. §§ 1725 and 1728. Specifically, section 1725 authorizes reimbursement for emergency treatment for eligible veterans with nonservice-connected conditions, and section 1728 authorizes reimbursement for emergency treatment for eligible veterans with service-connected conditions. These statutory provisions are implemented at 38 C.F.R. §§ 17.1000-17 .1008 for eligible veterans with nonservice-connected conditions, and at 38 C.F.R. § 17.120 and §17.121 for eligible veterans with service-connected conditions.

Here, the AOJ denied the claim because, among other things, the Veteran is not service-connected for any disease or disability.  However, the record reflects that the Veteran has a pending appeal with the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs for service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD). 

While the Veteran was treated for a condition affecting his lip, there is evidence to suggest that the treatment may be related to medication used for treatment for his claimed psychiatric disorder.  Treatment records from the Florida Hospital indicated that the Veteran's angioderma may be secondary to the psychiatric medication he was taking at the time.  He was instructed to stop taking his psychiatric medication.

As a result of the Veteran's pending service connection claim for an acquired psychiatric disorder, appellate review of the Veteran's claim of entitlement to payment or reimbursement of the cost of unauthorized medical services provided to the Veteran by Florida Hospital on January 4, 2014 must be deferred because these issues are inextricably intertwined with the service connection issue being remanded.  Hoyer v. Derwinski, 1 Vet. App. 208 (1991); Harris v. Derwinski, 1 Vet. App. 180 (1991).  In this respect, an award of service connection for an acquired psychiatric disorder impacts the determination as to whether to apply the provisions of 38 U.S.C.A. § 1725 or 38 U.S.C.A. § 1728 to the case at hand. The Board, therefore, must remand this case to the AOJ pending the outcome of the service connection claim for PTSD being remanded for further development. 

Accordingly, the case is REMANDED for the following action:

1. After waiting for a final adjudication as to the Veteran's claim for an acquired psychiatric disorder, to include PTSD, readjudicate the appeal.  Such readjudication should take into account entitlement to reimbursement of unauthorized medical expenses under 38 C.F.R. § 17.120, 38 U.S.C.A. § 1728 (West 2014), and 38 U.S.C.A. § 1725 (West 2014) (the Millennium Health Care and Benefits Act). 

2.  If the benefit sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC) which contains citation and a discussion of 38 C.F.R. § 17.120, 38 U.S.C.A. § 1728, and 38 U.S.C.A. § 1725 and the appeal should be returned to the Board after they have had a reasonable period of time to respond to the SSOC.

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 2014).



_________________________________________________
DAVID L. WIGHT
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)