Citation Nr: 1642446 Decision Date: 11/03/16 Archive Date: 11/18/16 DOCKET NO. 11-02 939A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Tennessee Valley Health Care System (HCS) THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred by the Veteran related to treatment at Memorial North Park Hospital on December 3, 2007. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1973 to April 1980. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2008 administrative decision of the Department of Veterans Affairs Tennessee Valley Health Care System in Murfreesboro, Tennessee. The Veteran provided testimony at a March 2012 hearing before the undersigned Acting Veterans Law Judge. A transcript of the hearing is of record. In June 2014, the Board denied the Veteran's claim for reimbursement of medical expenses incurred at Memorial North Park Hospital on December 3, 2007. He appealed, and in a January 2016 Joint Motion for Remand (JMR), the parties agreed that VA did not fulfill the duty to assist in obtaining VA medical records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As discussed, in the January 2017 JMR, the parties agreed that this matter required remand to ensure that the duty to assist under 38 U.S.C.A. § 5103A(c)(1)(B) was satisfied. The JMR identified VA records that were referenced in existing VA medical records; however, it was noted that the referenced records were not requested or obtained. First, an October 2007, VA "Advanced Heart Failure Clinic" note showed VA laboratory tests were scheduled at Chattanooga on October 30, 2007. Second, a March 2008 VA "Advanced Heart Failure Clinic" note show that the Veteran had an appointment with his primary care provider in November 2007. Third, a November 2007 VA "Addendum" noted there were additional scanned emergency room records. Fourth, a June 2008 VA primary care note indicated that the Veteran had an abdominal/ pelvic CT scan in November 2007. Accordingly, remand is required to obtain these identified, relevant medical records in the possession of the VA. 38 C.F.R. § 3.159. Here, the Veteran essentially contends that his hospitalization/surgery was for an emergency prostate condition and that he was advised to go to a private facility by his VA primary care provider who reportedly told the Veteran that there were no VA doctors available who could treat his condition and also reportedly told the Veteran that he would take care of the necessary paperwork. As noted in the JMR, VA has not obtained a medical opinion as to whether the Veteran's condition was of an emergent nature. Given, the Veteran's assertions, the incomplete medical record, and the fact that VA had previously submitted this matter for a medical opinion in December 2010 as to whether this was an emergent condition, and whether VA facilities were feasibly available, the Board finds that additional development of the record is required, to include having a medical professional review the evidence on file and to produce a written opinion discussing the emergent nature of medical care provided and the feasibility of VA care in consideration of 38 U.S.C.A. § 1725. Accordingly, the case is REMANDED for the following action: 1. Associate any outstanding VA medical records that are not already associated with the claims file, to specifically include: (1) results from an October 30, 2007 VA laboratory test if the scheduled appointment was kept; (2) treatment notes from a November 2007 appointment with Dr. Marks, the Veteran's primary care provider; (3) scanned emergency room records associated with a November 2007 VA "Addendum"; and (4) results from a November 2007 abdominal/ pelvic CT scan. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran informed in writing. The Veteran may submit medical records directly to VA. 2. Forward the Veteran's claims file (to include any temporary file) to a VA examiner to review, and ask the examiner to provide an opinion as to whether treatment received by the Veteran on December 3, 2007 was for a condition of such a nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. (This standard would be met if there were an emergency medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) that a prudent layperson who possesses an average knowledge of health and medicine could reasonably expect that the absence of immediate medical attention would result in placing the health of the individual in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part). The examiner should additionally be requested to provide an opinion as to whether VA facilities were feasibly available and whether an attempt to use them beforehand would be reasonable. The Veteran's claims file must be provided to and reviewed by the VA examiner. The VA examiner must provide a rationale for each opinion reached. 3. Then, readjudicate the claim. If any decision is adverse to the Veteran, issue a supplemental statement of the case, allow the applicable time for response, and then return the case to the Board. The Veteran 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). _________________________________________________ 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 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).