Citation Nr: 18141077 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 14-24 883A DATE: October 9, 2018 REMANDED Entitlement to payment or reimbursement for unauthorized medical expenses incurred at St. Lucie Medical Center (SLMC) from July 11-14, 2012, is remanded. REASONS FOR REMAND The Veteran had active duty service from March 1951 to March 1955. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Medical Center determination. The Veteran initially requested a Board hearing before a Veterans Law Judge in the July 2014 substantive appeal, VA Form 9, although he withdrew that request in an August 2018 correspondence. Thhis appeal arises from an initial denial based on the lack of a timely filed claim; the Agency of Original Jurisdiction (AOJ) indicated that the Veteran did not file his claim within 90 days of his discharge from the private medical facility. In order to obtain payment or reimbursement under 38 U.S.C. § 1725, a claimant must submit to the VA medical facility of jurisdiction a completed standard billing form (such as a UB92 or a HCFA 1500). See 38 C.F.R. § 17.1004(b). Also, to receive payment or reimbursement, 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. See 38 C.F.R. § 17.1004(d). The Board, however, notes that the AOJ also indicated that at least one medical provider has been paid in relationship to the Veteran’s episode of ambulance transfer and emergency medical treatment on an in-patient basis at SLMC for a cerebral artery occlusion (stroke) from July 11-14, 2012. The AOJ’s rationale for an untimely filed claim is inconsistent with the other facts in this case as it appears that at least one medical provider filed a timely claim for medical payment. Thus, it would appear that a timely claim has been filed; merely because one or two medical providers filed a hospital bill with VA after the 90-day deadline does not mean that there was no a timely filed claim in this case. Cf. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Moreover, the AOJ’s rationale appears to indicate that because a third-party medical provider filed a bill after the 90-day deadline that the Veteran’s right to seek payment or reimbursement in this case is nullified. This is clearly antithetical to the provisions of 38 C.F.R. § 17.1004(d)(3), which indicates that the Veteran has 90 days to file a claim in his own right after exhausting without success to obtain payment or reimbursement from a third-party. In other words, when the AOJ denied the three third-party medical providers payment for filing untimely claims, the AOJ should have issued a denial letter of determination to the Veteran notifying him that the AOJ was denying those claims and informing the Veteran of his right to file a claim in his own right. It does not, however, appear that the AOJ informed the Veteran that there was “not a timely filed claim” for payment until issuance of the June 2014 statement of the case, nearly 2 years after the episode of care. Within thirty days of being informed in that document, the Veteran submitted a substantive appeal, VA Form 9, in which he indicated that VA paid 2 of the 3 bills that he received and that the third bill was received 18 months after discharge from service and that he was told that the hospital was taking care of the billing. He argues that it was not his fault that the bills were not timely filed. The Board agrees with the Veteran’s statements in this case. Accordingly, as it appears that the AOJ did not consider the third criteria, which would mean that the Veteran’s timely filed substantive appeal functions as his notice of disagreement with the initial denial—in the form of a June 2014 statement of the case. Regardless, given that the Veteran told the hospital staff to bill VA and that is exactly what was done in this case, it appears to the Board that this is a continuously prosecuted claim since the initial timely bill was sent to VA in this case, and therefore there is a timely filed claim. Thus, the AOJ’s reasoning for denial in this case is invalid and a discussion of the merits of the case is warranted. Consequently, the claim must be remanded in order for the AOJ to complete proper development of this case, to include obtaining any bills from the Veteran indicating that he is personally liable for any portion of the remaining medical expenses (outside of any co-insurance payments, copayments, etc.) and adjudication of the claim on the merits. The matter is REMANDED for the following action: The AOJ should properly develop the record and evidence in the claims file with regards to the merits of this claim under 38 C.F.R. § 1725, to include obtaining any evidence from the Veteran regarding any outstanding medical expenses associated with this episode of care for which he is personally liable that were not extinguished by his Medicare Part A coverage absent any deductible, co-insurance payments, copayments, or other similar payments that the Veteran owed under his third-party insurance contract. Following any additional indicated development, the AOJ should review the claims file and readjudicate the Veteran’s claim for payment or reimbursement for unauthorized medical expenses incurred at St. Lucie Medical Center (SLMC) from July 11-14, 2012. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Peters, Counsel