Citation Nr: 1807670 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 13-14 227 ) DATE ) ) On appeal from the Department of Veterans Affairs Veterans Health Administration in Denver, Colorado THE ISSUE Entitlement to reimbursement for private medical treatment expenses incurred at Northern Idaho Advanced Care Hospital from May 12, 2012, to May 18, 2012. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Y. Lee, Associate Counsel INTRODUCTION The Veteran had honorable active duty service with the United States Marine Corps from May 1969 to November 1970. The Veteran received the Vietnam Service Medal, the Vietnam Campaign Medal with device, and the Purple Heart Medal among other commendations. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 decision by the Department of Veterans Affairs Medical Center (VAMC) in Portland, Oregon, which denied payment or reimbursement of certain medical expenses incurred from May 12, 2012, to May 18, 2012. The VAMC is the Agency of Original Jurisdiction (AOJ) in the present matter. Jurisdiction of the file is now with the Veterans Health Administration (VHA) in Denver, Colorado. In April 2015, the Board denied the claim on appeal. Thereafter, the Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a Memorandum Decision dated February 2017, the Court vacated the Board's denial of this issue, and remanded the case for readjudication in accordance with the decision. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Regrettably, a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran seeks reimbursement for unauthorized medical expenses incurred at Northern Idaho Advanced Care Hospital (NIACH) from May 12, 2012, to May 18, 2012, for further treatment and care for respiratory failure. The Veteran initially sought emergency room treatment on May 8, 2012, at Boundary Community Hospital due to increasing shortness of breath. On May 10, 2012, he was transferred by way of air ambulance to Kootenai Medical Center due to shortness of breath and hypoxemia. The Veteran was treated for acute hypoxic respiratory failure, chronic obstructive pulmonary disease (COPD) exacerbation, tachycardia, bronchitis, and coronary artery disease. On May 12, 2012, the Veteran was transferred to NIACH, where he received treatment until May 18, 2012. The Veteran is not service-connected for any respiratory disability at the present time; however, the Veteran is service-connected for posttraumatic stress disorder (PTSD), as 100 percent disabling, effective as of December 1, 1997. Under U.S.C. § 1728(a) and 38 C.F.R. § 17.120, VA may reimburse veterans for unauthorized medical expenses incurred in non-VA facilities for any disability of a veteran who has a total disability permanent in nature resulting from a service-connected disability, as here, where emergency treatment was needed under 38 U.S.C. § 1725(f) (1). The Board finds that in accordance with the Court's February 2017 Memorandum Decision, a remand is appropriate to obtain a medical opinion to determine whether the treatment at issue, including treatment received at Boundary Community Hospital and Kootenai Medical Center, was rendered in a medical emergency of such nature that a prudent layperson would reasonably expect that delay would have been hazardous to life or health. On remand, the AOJ should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. Obtain a medical opinion that shows review of all of the Veteran's private medical treatment at Boundary Community Hospital, Kootenai Medical Center, and Northern Idaho Advanced Care Hospital from May 8, 2012, to May 18, 2012. The examiner must provide an opinion as to whether, at any point during the specified timeframe, the private medical services were rendered in a medical emergency of such nature that a prudent layperson reasonably expects that delay would have been hazardous to life or health. If it is determined that there was a medical emergency at any point during the specified timeframe, the examiner should also opine as to the date on which this emergency ended and it was safe to transfer the Veteran to a VA facility, provided one was available. The examiner should provide reasons and bases for the opinions. The examiner should also opine as to whether a VA or other Federal facility was feasibly available and whether an attempt to use them beforehand or obtain prior VA authorization for the services required would have been reasonable. The examiner should provide reasons and bases for the opinion. If the examiner opines that such a facility was reasonably available, the examiner should state which facility was feasibly available and indicate that such facility was capable of performing the required services. 3. Ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND so as to help avoid future remand. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action must be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After completing all indicated development, the Veteran's claim should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is remanded to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) 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. §§ 5109B, 7112 (West 2014). _________________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 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) (2017).