Citation Nr: 18157634 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 16-23 762 DATE: December 13, 2018 REMANDED Entitlement to payment or reimbursement of unauthorized medical expenses incurred during a non-VA hospitalization at Englewood Community Hospital on September 22, 2015, is remanded. REASONS FOR REMAND The Veteran had active duty in the U.S Marine Corps from December 1969 to October 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2015 and December 2015 decisions by the Department of Veterans Affairs (VA) Medical Center (VAMC) in Bay Pines, Florida. This appeal was processed using only a paper-based claims file. The issue of payment or reimbursement of unauthorized medical expenses under 38 U.S.C. § 1725 is REMANDED. On Tuesday, September 22, 2015, at approximately 12:29pm, the Veteran arrived at the emergency department of Englewood Community Hospital in Englewood, Florida. He arrived by private vehicle. He says he drove from his work. He was 64 years of age at that time. Private emergency department notes from Englewood reflected that the Veteran reported a two-day onset of abdominal pain. A colonoscopy one-month prior had revealed diverticulitis. The Veteran was also concerned that a previous abdominal aortic aneurysm was flaring up. Upon physical examination, his signs were essentially normal. However, a computer aided topography (CAT) scan of the abdomen revealed aneurysmal dilatation of the distal abdominal aorta. During his hospital stay, his abdominal pain lessened considerably without medication. He was discharged to his home a little over two hours later at 2:52pm. He was provided with the medication Loperamide. It appears the Veteran had no private health insurance at the time of the private hospitalization in question. The private hospital and associated providers have submitted invoices in the amounts of $2,002 and $1,702 and $323 for their services that afternoon. See October 2015 claims. The private hospitalization in question was for a nonservice-connected abdominal disorder. The Veteran has no disabilities adjudicated as service-connected by VA. And as noted above, the Veteran has no health insurance. VA would not cover the costs of the September 22, 2015 private hospitalization at Englewood Community Hospital. Since the Veteran’s private hospitalization was for a nonservice-connected abdominal 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. The VAMC has denied the Veteran’s medical expense reimbursement claim. The VAMC determined that the Veteran’s private hospitalization at Englewood Community Hospital on September 22, 2015, was not a “medical emergency” under the prudent layperson standard. In other words, his abdominal pain was not 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. See 38 C.F.R. § 17.1002(b). The VAMC also determined that a VA facility (the VAMC in Bay Pines, Florida or the VA Sarasota Community Based Outpatient Clinic (CBOC)) were feasibly available to the Veteran on the afternoon of Tuesday, September 22, 2015. See 38 C.F.R. § 17.1002(c). It is noted for the record that the VAMC in Bay Pines is open 24 hours a day, 7 days a week. It is also noted that the VA CBOC in Sarasota, Florida is open from 7:30am to 4:30pm on weekdays. The Veteran was previously monitored at the VA CBOC in Sarasota for his abdominal aortic aneurysm. 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 his work address for the record to associate with the claims file. In this regard, the Veteran maintains that he drove to the hospital from his work that afternoon, but not from his home. See December 2015 Notice of Disagreement (NOD). The relative distance of the travel involved from his work address to the VAMC in Bay Pines, to the VA CBOC in Sarasota, and to the Englewood Community Hospital is pertinent in determining the feasible availability of each facility that afternoon. See 38 C.F.R. § 17.53. Second, the VA should obtain the Veteran’s complete private hospital records from Englewood Community Hospital dated on September 22, 2015. There is no indication in the claims file VA attempted to obtain all the 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). A complete set of private hospital records would shed more light on the potential existence of a “medical emergency” that afternoon. In addition, the Veteran contends that emergency room staff at Englewood Community Hospital informed him that they contacted the VAMC in Bay Pines and got approval for the Veteran’s private hospital stay for that afternoon. See December 2015 NOD. At present, the limited six pages of private hospital records from Englewood Community Hospital in the claims file fail to mention any contact between private hospital personnel and the VAMC in Bay Pines. Any additional private hospital records may potentially reveal prior authorization from the VAMC for the stay. Third, a remand is required to secure potentially outstanding VA treatment records. These VA treatment records include the following: (1) VA treatment records from the CBOC in Sarasota, Florida, where in the months prior to his September 22, 2015 private hospitalization, the Veteran says he was monitored by his VA primary care physician for an abdominal aortic aneurysm; and (2) VA telephone or VA administrative records from the VAMC in Bay Pines, Florida, dated on September 22, 2015. On this issue, the Veteran contends that emergency room staff at Englewood Community Hospital informed him that they contacted the VAMC in Bay Pines and got approval for the Veteran’s private hospital stay for that afternoon. See December 2015 NOD. Any such VA telephone or VA administrative records may shed light on whether VA provided prior authorization on a one-time basis for the Veteran’s private hospitalization at Englewood Community Hospital on September 22, 2015. Such VA telephone or VA administrative records may also shed further light on whether a VA facility was feasibly available at the time of his private hospitalization. See 38 U.S.C. §§ 1725(f)(1)(A), 1728; 38 C.F.R. §§ 17.53, 17.120(c),17.1002(c). Therefore, VA should attempt to obtain these outstanding VA treatment records. VA must continue to obtain such records unless it is documented that the records do not exist or that further efforts would be futile. 38 U.S.C. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2), (c)(3). See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is charged with constructive knowledge of evidence generated by VA). This matter is REMANDED for the following action: 1. The AOJ should send the Veteran a letter asking him to submit his work address for the record to associate with the claims file. (The Veteran maintains that he drove to the private hospital from his work that afternoon, but not from his home. See December 2015 NOD. The relative distance of the travel involved from his work address to the VAMC in Bay Pines, to the VA CBOC in Sarasota, and to the Englewood Community Hospital is pertinent in determining the feasible availability of each facility that afternoon. See 38 C.F.R. § 17.53.) 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 Englewood Community Hospital dated on September 22, 2015. A complete set of private hospital records would shed more light on the potential existence of a “medical emergency” that afternoon. In addition, the Veteran contends that emergency room staff at Englewood Community Hospital informed him that they contacted the VAMC and got approval for the Veteran’s private hospital stay for that afternoon. See December 2015 NOD. At present, the limited six pages of private hospital records from Englewood Community Hospital dated in the claims file fail to mention any contact between private hospital personnel and the VAMC in Bay Pines. Any additional private hospital records may potentially reveal prior authorization from the VAMC for the Veteran’s stay that afternoon. Therefore, the AOJ should ask that the Veteran provide a completed release form (VA Form 21-4142) authorizing VA to obtain his complete private hospital records from Englewood Community Hospital. Then the AOJ should attempt to obtain them and associate these private hospital 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 attempt to obtain the following potential VA treatment records: (a.) VA treatment records from the CBOC in Sarasota, Florida, where in the months prior to his September 22, 2015 private hospitalization, the Veteran says he was monitored by his VA primary care physician for an abdominal aortic aneurysm; (b.) VA telephone or VA administrative records from the VAMC in Bay Pines, Florida, dated on September 22, 2015. On this issue, the Veteran contends that on the afternoon of September 22, 2015, emergency room staff at Englewood Community Hospital informed him that they contacted the VAMC in Bay Pines and got approval for the Veteran’s private hospital stay for that afternoon. See December 2015 NOD. Any such VA telephone or VA administrative records from the VAMC in Bay Pines may shed light on whether VA provided prior authorization on a one-time basis for the Veteran’s private hospitalization at Englewood Community Hospital on September 22, 2015. Such VA telephone or VA administrative records may also shed further light on whether a VA facility was feasibly available at the time of his private hospitalization. 4. After completion of steps 1-3 above, the AOJ should readjudicate the issue on appeal of entitlement to payment or reimbursement of unauthorized medical expenses incurred during a non-VA hospitalization at Englewood Community Hospital on September 22, 2015. If the benefit sought is not granted, the Veteran and any representative should be furnished a Supplemental Statement of the Case (SSOC) and should be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P.S. Rubin, Counsel