Citation Nr: 18147083 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 16-14 349 DATE: November 2, 2018 REMANDED Entitlement to payment or reimbursement of unauthorized medical expenses incurred during a non-VA hospitalization at Shannon Medical Center from February 24, 2013 to February 27, 2013 is remanded. REASONS FOR REMAND The Veteran had active duty in the U.S Army from September 1969 to June 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2013 and September 2013 decisions by the Department of Veterans Affairs (VA) VISN 18 Consolidated Payment Center in Fort Harrison, Montana. This appeal was processed using only a paper-based claims file. 1. The issue of payment or reimbursement of unauthorized medical expenses under 38 U.S.C. § 1725 is remanded. From February 24, 2013 to February 27, 2013, the Veteran was hospitalized at Shannon Medical Center in San Angelo, Texas. He was 66 years of age at the time. He was hospitalized at the private facility for chest pain due to a myocardial infarction. During his private hospitalization, a cardiologist at Shannon Medical Center removed blood clots and inserted two stents. His condition eventually stabilized, and he was discharged on February 27, 2013. He received follow-up treatment with both private cardiologists and VA physicians at the VA Community Based Outpatient Clinic (CBOC) in San Angelo, Texas. The private hospitalization in question was for a nonservice-connected disorder. The Veteran has no disabilities adjudicated as service-connected by VA. At the time of his private hospitalization, the Veteran had health insurance through Medicare Part A, which covered a portion of his private hospital bills. However, his Medicare Part A did not cover all of his medical expenses from this private hospitalization. VA would not cover these remaining medical expenses. Since the Veteran’s private hospitalization was for a nonservice-connected heart disorder, the only possible route to entitlement to unreimbursed medical expenses in this case stems from 38 U.S.C. § 1725 – the Veterans Millennium Health Care and Benefits Act. Under this Act, payment or reimbursement of non-VA emergency medical services for nonservice-connected disorders for veterans without insurance is available if certain conditions are met. 38 U.S.C. § 1725 (2012); 38 C.F.R. §§ 17.1000-17.1008 (2017). Effective October 10, 2008, the provisions of 38 U.S.C. § 1725 and § 1728 were amended. See Veterans’ Mental Health and Other Care Improvements Act of 2008, Pub. L. No. 110-387, § 402, 122 Stat. 4110 (2008). The changes are liberalizing in that they make reimbursement for medical expenses mandatory instead of discretionary, as well as expand the definition of “emergency treatment” beyond the point of stabilization. In addition, the changes apply the more liberal prudent layperson standard for determining whether an actual medical emergency existed under either 38 U.S.C. § 1725 and § 1728. In the VA decisions on appeal, the VA denied the Veteran’s claim for medical expenses for his private hospitalization at Shannon Medical Center from February 24, 2013 to February 27, 2013. VA denied the medical expense claim on three bases. First, the VA determined that the Veteran had Medicare Part A health insurance, which provided partial coverage for the Veteran’s medical expenses associated with his private hospitalization at Shannon Medical Center from February 24, 2013 to February 27, 2013. The VA determined that his health care plan contract that covered a portion of his medical expenses was a bar to eligibility for reimbursement under 38 U.S.C. § 1725 and 38 C.F.R. § 17.1002(f) (2013), for veterans with nonservice-connected disorders. Second, the medical expense claims for payment or reimbursement from the Veteran and / or his private providers were not timely filed within 90 days of the date the Veteran was discharged from the private facility (within 90 days of February 27, 2013). See 38 C.F.R. § 17.1004(d). Third, at the time the private emergency treatment was furnished, the Veteran was not enrolled in the VA health care system and had not received VA medical services under authority of 38 U.S.C. chapter 17 within the 24–month period preceding the furnishing of such emergency treatment. See 38 C.F.R. §17.1002(d). In any event, upon review, the Board finds that additional development of the evidence is required. First, the VA should ask the Veteran to submit copies of the following relevant documents to associate with the claims file – (1) a copy of the Veteran’s alleged May 2013 claim for payment or reimbursement, which he says he filed in a timely fashion at the Big Spring, Texas VAMC within 90 days of his February 27, 2013 discharge from his private hospitalization; and (2) any records confirming he received VA medical treatment at the VA CBOC in San Angelo, Texas, within 24 months preceding the private hospitalization. In this regard, in his September 2013 Notice of Disagreement (NOD), the Veteran asserts that he filed a timely claim for payment or reimbursement in May 2013 and received VA treatment prior to his February 2013 private hospitalization. Second, the VA should secure copies of the following missing documents and associate them with the claim file – (1) July 2013 claims for payment or reimbursement and the alleged May 2013 claim for payment or reimbursement, which the Veteran says he timely filed at the Big Spring, Texas VAMC; and (2) all outstanding VA treatment records for the Veteran from the VA CBOC in San Angelo, Texas and other nearby facilities. In this regard, the Board sees that the May 2014 reconsideration decision and December 2015 Statement of the Case (SOC) listed these documents as being part of the record, but a review of the record reveals they were not associated with the claims file for the Board to review. Third, the VA should obtain the Veteran’s complete private hospital records from Shannon Medical Center dated from February 24, 2013 to February 27, 2013. There is no indication in the claims file VA attempted to obtain these potentially relevant private hospital records. In fact, the Veteran has not completed the necessary authorization forms (VA Forms 21-4142) to secure complete private hospital records. In this regard, the VA should ask him to provide the full names of the provider(s) who treated him, the specific dates of treatment, or any address or telephone information. VA is required to make reasonable efforts to obtain all “relevant” records, including private hospital records like these, which the Veteran adequately identifies and authorizes VA to obtain. 38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(c). VA regulation clarifies that “reasonable efforts” will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. 38 C.F.R. § 3.159(c)(1). Fourth, a SOC or SSOC issued to an appellant must be complete enough to allow the appellant to present argument before the Board and must contain a summary of the applicable laws and regulations with appropriate citations and a discussion of how such laws and regulations affect the determination. 38 U.S.C. § 7105(d); 38 C.F.R. § 19.29. Additionally, a SSOC will be furnished to an appellant when a material defect in a prior SOC or SSOC is discovered, making it inadequate. 38 C.F.R. § 19.31(b)(2), (3). In this case, after the issuance of the December 2015 SOC, VA amended 38 C.F.R. §§ 17.1002, 17.1003, and 17.1005 to expand eligibility for emergency treatment and / or emergency transportation for veterans who receive partial payment from a health-plan contract (such as Medicare Part A). Reimbursement remains prohibited only if the health-plan contract wholly extinguishes the Veteran’s liability in light of the Court of Appeals for Veterans Claims (Court) precedential decision in Staab v. McDonald, 28 Vet. App. 50, 55 (2016). Therefore, to ensure due process, and to avoid prejudice, on remand, the VA should issue a rating decision or SSOC which contains citation and discussion of the updated provisions to expand eligibility for emergency treatment and / or emergency transportation for veterans who receive partial payment from a health-plan contract (such as Medicare Part A) — 38 C.F.R. § 17.1002(f) (effective January 2018). See also Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). The matter is REMANDED for the following action: 1. The AOJ should send the Veteran a letter asking him to submit copies of the following relevant documents to associate with the claims file: (a.) A copy of the Veteran’s alleged May 2013 claim for payment or reimbursement, which he says he filed in a timely fashion at the Big Spring, Texas VAMC within 90 days of his February 27, 2013 discharge from his private hospitalization; and (b.) Any records confirming he received VA medical treatment at the VA CBOC in San Angelo, Texas, within 24 months preceding the private hospitalization. In this regard, in his September 2013 NOD, the Veteran asserts that he filed a timely claim for payment or reimbursement in May 2013 and received VA treatment prior to his February 2013 private hospitalization). 2. The AOJ should contact the Veteran and ask that he complete and return the necessary authorization (VA Form 21-4142) for VA to obtain complete private hospital records from Shannon Medical Center dated from February 24, 2013 to February 27, 2013. Ask that the Veteran provide the full names of the provider(s) who treated him, the specific dates of treatment, and any address or telephone information. If he provides a completed release form (VA Form 21-4142) authorizing VA to obtain his private hospital records from Shannon Medical Center, then attempt to obtain them and associate these records with the claims file. The Veteran is also asked to provide complete private hospital records himself, if he has them in his possession. 3. The AOJ should secure copies of the following missing documents and associate them with the claim file: (a.) Copies of July 2013 claims for payment or reimbursement and the alleged May 2013 claim for payment or reimbursement, which the Veteran says he timely filed at the Big Spring, Texas VAMC; and (b.) All outstanding VA treatment records for the Veteran from the VA CBOC in San Angelo, Texas and other nearby facilities. In this regard, the Board sees that the May 2014 reconsideration decision and December 2015 SOC listed these documents as being part of the record, but a review of the record reveals they were not associated with the claims file for the Board to review. 4. After completion of steps 1-3 above, the VA should readjudicate the issue on appeal of payment or reimbursement of unauthorized medical expenses incurred during a non-VA hospitalization at Shannon Medical Center from February 24, 2013 to February 27, 2013. This SSOC should contain citation and discussion of the updated provisions to expand eligibility for emergency treatment and / or emergency transportation for veterans who receive partial payment from a health-plan contract (such as Medicare Part A) — 38 C.F.R. § 17.1002(f) (effective January 2018). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P.S. Rubin, Counsel