Citation Nr: 1645671 Decision Date: 12/06/16 Archive Date: 12/19/16 DOCKET NO. 12-04 572 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Lincoln, Nebraska THE ISSUE Entitlement to reimbursement or payment for the cost of private medical services provided at St. Elizabeth Regional Medical Center (SERMC) for treatment received from February 2, 2011 to February 3, 2011. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Pelican, Associate Counsel INTRODUCTION The Veteran served on active duty in the Air Force from March 1971 to June 1972, and was awarded the National Defense Service Medal. This case comes before the Board of Veterans' Appeals (the Board) from a February 2011 decisional letter from the Nebraska-Western Iowa Health Care System at the Department of Veterans Affairs Medical Center (VAMC) in Lincoln, Nebraska, which denied the Veteran's claim for reimbursement or payment for the cost of private medical treatment provided to the Veteran at the SERMC from February 2, 2011 to February 3, 2011. The Veteran had a hearing before the undersigned Veterans' Law Judge in November 2012. A transcript of that proceeding has been associated with the claims file. A July 2015 Board decision denied the Veteran's claim for reimbursement. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (the Court). In a July 2016 order, the Court vacated the July 2015 Board decision, and remanded the matter to the Board for further proceedings consistent with a July 2016 Joint Motion for Remand (JMR). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In the July 2016 JMR, the parties agreed that the Board's reasons and bases for denying the Veteran's claim for reimbursement for private medical treatment was deficient in two respects. First, the parties found that the Board did not provide any support for its factual finding that the Veteran's condition had stabilized following his emergency room treatment. Second, the Board did not support its finding that the record contained no evidence demonstrating that VA facilities were not feasibly available. See JMR, pp. 7-8. The parties agreed that on remand, the Board should reexamine the evidence of record, seek any other evidence the Board feels is necessary, and issue a timely, well-supported decision in this case. To that end, additional development is required before the Board may render a decision. The March 18, 2011 Medical Review and June 13, 2011 Medical Review both indicated that the Veteran walked in to the emergency room at 10:00 PM on February 2, 2011, and was subsequently admitted for observation. However, lab results show that bloodwork was collected from the Veteran at 8:56 PM, indicating the Veteran presented to the emergency room prior to 10:00 PM, and suggesting the existence of outstanding emergency room records. Moreover, the February 2, 2011 History and Physical Examination report completed by Dr. S. O. is missing page two of the three page report. Complete records for the Veteran's emergency room treatment are pertinent to the Veteran's claim for reimbursement. Thus, on remand the AOJ should attempt to obtain complete emergency room records from SERMC for February 2011. Further, the AOJ should obtain any outstanding VA medical records dated in February 2011. Accordingly, the case is REMANDED for the following actions: 1. Take appropriate action to obtain VA treatment records not already of record dated in February 2011. If VA is unable to obtain these records, the Veteran must be notified of this fact and all efforts to obtain them must be documented and associated with the claims file. 2. With appropriate authorization from the Veteran, obtain and associate with the record any outstanding private treatment records from St. Elizabeth Regional Medical Center, to include complete emergency room records dated February 2, 2011 and a complete copy of Dr. S. O.'s February 2, 2011 History and Physical Examination report. 3. Then, readjudicate the claim on appeal, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a Supplemental Statement of the Case and afforded an appropriate period of time within which to respond thereto. 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). _________________________________________________ C. TRUEBA 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).