Citation Nr: 1645618 Decision Date: 12/06/16 Archive Date: 12/19/16 DOCKET NO. 14-38 625 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Gainesville, Florida THE ISSUES 1. Whether a timely claim was filed for entitlement to reimbursement for or payment of the cost of medical services provided at Baptist Medical Center South from May 11, 2013, to May 21, 2013. 2. Entitlement to reimbursement for or payment of the cost of medical services provided at Baptist Medical Center South from May 11, 2013, to May 21, 2013. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. F. Brandau, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1986 to July 1999. This matter comes before the Board of Veterans' Appeals (Board) from September 2013 decision from the Department of Veterans Affairs Medical Center (VAMC) in Gainesville, Florida, which denied approval of her claim for reimbursement or payment for the cost of private medical services provided to the Veteran at Baptist Medical Center South for emergency room treatment received from May 11, 2013, to May 21, 2013. In February 2015 the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing at the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A transcript of the hearing is of record. The issue of entitlement to reimbursement for or payment of the cost of medical services provided at Baptist Medical Center South from May 11, 2013, to May 21, 2013, is addressed in the REMAND that follows the ORDER section of this decision. FINDINGS OF FACT 1. The Veteran received medical treatment from Baptist Medical Center South from May 11, 2013, to May 21, 2013; the medical treatment was not previously authorized by VA. 2. The Veteran filed a claim for payment of or reimbursement for the unauthorized medical treatment prior to the 90-day deadline. CONCLUSION OF LAW The claim for to reimbursement for or payment of the cost of medical services provided at Baptist Medical Center South from May 11, 2013, to May 21, 2013, was timely filed. 38 U.S.C.A. § 1725 (West 2014), 38 C.F.R. § 17.1004(f) (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION The VA Medical Center in Gainesville, Florida relied on the provisions of 38 C.F.R. § 17.1004(d) to deny the above claim as untimely. This provision states: To receive payment or reimbursement for emergency services, a claimant must file a claim within 90 days after the latest of the following: (1) The date that the veteran was discharged from the facility that furnished the emergency treatment; (2) The date of death, but only if the death occurred during transportation to a facility for emergency treatment or if the death occurred during the stay in the facility that included the provision of the emergency treatment; or (3) The date the veteran finally exhausted, without success, action to obtain payment or reimbursement for the treatment from a third party. 38 C.F.R. § 17.1004(d). In this case, the Veteran was hospitalized beginning May 11, 2013. She testified that on the first day of her hospitalization she informed the hospital that she was an uninsured veteran, and provided documentation. The Veteran testified that the intake specialist said he/she would take the Veteran's information and contact Gainesville VA for billing purposes on the next business day. The Veteran asserted that a hospital social worker also indicated that she would contact VA on the Veteran's behalf. Nonetheless, after the Veteran's discharge she began receiving medical bills from Baptist Medical Center South, and according to her testimony she began contacting Gainesville VA in early August. The Veteran's representative has referred to two pieces of evidence in the record. The first is a case note from August 8, 2013, wherein there was a suggestion that Baptist Medical Center South and Gainesville VA had been in contact to arrange for billing of services. The Veteran testified that she remembered speaking with the representative listed in the note on August 8, 2013. The second piece of evidence is a bill sent from Baptist Medical Center South, and in the middle of the page there is an indication that the bill was created on August 12, 2013. The Board notes that the Veteran has consistently indicated in her testimony and written statements that she promptly notified Baptist Medical Center South that she was a veteran and that it was her understanding that the hospital would be billing VA immediately. Moreover, the evidence referenced in the Board hearing, including the case note and the bill, both suggest that the billing process began before the 90-day expiration date. The Board finds that the evidence is in relative equipoise, and in giving the Veteran the benefit of the doubt, the Board finds that the claim is timely under 38 C.F.R. § 17.1004(d). ORDER The claim for entitlement to reimbursement for or payment of the cost of medical services provided at Baptist Medical Center South from May 11, 2013, to May 21, 2013, was timely filed. REMAND The Veterans Millennium Health Care and Benefits Act provides general authority for reimbursement for the reasonable value of emergency treatment furnished in a non-Department facility to those veterans who are active Department health-care participants (i.e., enrolled in the annual patient enrollment system and recipients of Department hospital, nursing home, or domiciliary care under such system within the last 24-month period) and who are personally liable for such non-VA treatment and are not eligible for reimbursement under the provisions of 38 U.S.C.A. § 1728 (West 2014). See 38 U.S.C.A. § 1725; 38 C.F.R. §§ 17.1000-17.1008 (2015). In the present appeal, the Veteran is seeking payment of or reimbursement for medical expenses incurred for treatment provided at Baptist Medical Center South, a non-VA facility, from May 11, 2013, to May 21, 2013. The VAMC has not adjudicated the merits of this claim. Rather, the claim was denied outright as untimely. "All questions in a matter which . . . is subject to decision by the Secretary shall be subject to one review on appeal to the Secretary." 38 U.S.C.A. § 7104(a). The U.S. Court of Appeals for Veterans Claims (Court) held: When . . . the Board addresses in its decision a question that had not been addressed by the RO, it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument on that question and an opportunity to submit such evidence and argument and to address that question at a hearing, and, if not, whether the claimant has been prejudiced thereby. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this case, the Veteran's arguments pertaining to this claim largely focuses around why her claim should be considered timely. Therefore, it cannot be said that the Veteran would not be prejudiced if the Board were to adjudicate the merits of the underlying claim without first remanding to the VAMC. As such, a remand is warranted to afford the Veteran due process. Moreover, it is not clear whether the complete records from Baptist Medical Center South were requested for services provided from May 11, 2013, to May 21, 2013. These records may contain potentially relevant information regarding the nature of the Veteran's condition. Further, the VAMC must determine whether the other criteria of 38 U.S.C.A. § 1725 have been met, including, but not limited to, whether a VA or other Federal facility/provider was not feasibly available and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson Accordingly, the case is REMANDED to the VAMC for the following: 1. Following receipt of authorization, obtain and associate with the medical reimbursement file complete records from Baptist Medical Center South regarding treatment and billing for services rendered from May 11, 2013, to May 21, 2013, including whether Medicare or another entity paid for any part of the bills in question. 2. Undertake any other indicated development. 3. Then, adjudicate the claim on the merits. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and her representative should be provided with a Supplemental Statement of the Case and be afforded the requisite opportunity to respond. The case should then be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until she is otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or 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). _________________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs