Citation Nr: 20006524 Decision Date: 01/27/20 Archive Date: 01/27/20 DOCKET NO. 13-25 408A DATE: January 27, 2020 REMANDED Entitlement to payment or reimbursement of medical expenses incurred on November 26 and 27, 2012, at Rochester General Hospital (RGH) is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1991 to December 1994. The Veteran also served in the Army National Guard from 1983 to 1986, and had a period of active duty for training from July to October 1984. This appeal is before the Board of Veterans’ Appeals (Board) from an August 2013 decision of the Department of Veterans Affairs (VA) Veterans Health Administration. Under 38 U.S.C. § 1728, a Veteran who has a total disability, permanent in nature, resulting from a service-connected disability is entitled to payment or reimbursement of unauthorized medical expenses incurred at a non-VA facility for treatment of any disability when it is also shown that (1) the services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health, and (2) no VA or other Federal facilities were feasibly available and an attempt to use them beforehand would not have been reasonable. 38 U.S.C. § 1728; 38 C.F.R. § 17.120. The provisions of 38 U.S.C. § 1728 are implemented under 38 C.F.R. §§ 17.120-32. The Veterans Millennium Health Care and Benefits Act provides general authority for reimbursement for the reasonable value of emergency treatment furnished in a non-VA facility to those Veterans who are active VA health-care participants (i.e., enrolled in the annual patient enrollment system and recipients of a VA hospital, nursing home, or domiciliary care under such system within the last 24-month period) and who are personally liable for such non-VA treatment and not eligible for reimbursement under the provisions of 38 U.S.C. § 1728. 38 U.S.C. § 1725; 38 C.F.R. §§ 17.1000-1008. VA regulations at 38 C.F.R. §§ 17.1000 through 17.1008 constitute the requirements under 38 U.S.C. § 1725. 38 C.F.R. § 17.1000. The Veteran received treatment at RGH on November 26 and 27, 2012. He filed a claim for payment of this treatment in February 2012. As reflected in its August 2013 decision and September 2013 statement of the case, the agency of original jurisdiction (AOJ) denied the Veteran’s claim solely on the basis that, following receipt of his claim, the AOJ requested additional information in the form of the complete medical records from RGH but did not receive a response within 30 days; therefore, the Veteran’s claim was considered abandoned pursuant to 38 C.F.R. § 17.10004(e). According to the statement of the case, such request was sent to the Veteran and his medical provider on March 7, 2013. Initially, the record does not contain documentation of the March 7, 2013, request for records purportedly sent to the Veteran and his provider. Moreover, the record reflects that the Veteran has a total disability, permanent in nature, resulting from a service-connected disability, with an effective date in January 2009. The Veteran is therefore eligible for consideration under 38 U.S.C. § 1728, rather than § 1725. See 38 C.F.R. § 17.120. In this regard, the AOJ, in its August 2013 decision, explicitly noted that the Veteran’s claim was being adjudicated pursuant to § 1728. However, in applying the time limits for filing and abandoning claims contained in 38 C.F.R. § 17.1004, and particularly § 17.1004(e), the AOJ erroneously applied the time limits applicable in claims adjudicated under 38 U.S.C. § 1725 rather than § 1728. In most cases, to receive payment or reimbursement for emergency services under 38 U.S.C. § 1725, a claimant must file a claim within 90 days after the date that the veteran was discharged from the facility that furnished the emergency treatment. 38 C.F.R. § 17.1004(d). If after reviewing a claim the decisionmaker determines that additional information is needed regarding the claim, such official will contact the claimant in writing and request additional information. The additional information must be submitted to the decisionmaker within 30 days of receipt of the request or the claim will be treated as abandoned, except that if the claimant within the 30-day period requests in writing additional time, the time-period for submission of the information may be extended as reasonably necessary for the requested information to be obtained. 38 C.F.R. § 17.1004(e). However, unlike claims made pursuant to 38 U.S.C. § 1725, for claims for payment or reimbursement of the expenses of medical care or services under § 1728, a claim must be filed within two years after the date the care or services were rendered. See 38 C.F.R. § 17.126. In these cases, furthermore, any informal claim for the payment or reimbursement of medical expenses which is not followed by a formal claim, or any formal claim which is not followed by necessary supporting evidence, within 1 year from the date of the request for a formal claim or supporting evidence shall be deemed abandoned, and payment or reimbursement shall not be authorized on the basis of such abandoned claim or any future claim for the same expenses. For the purpose of this section, time limitations shall be computed from the date following the date of request for a formal claim or supporting evidence. 38 C.F.R. § 17.131. In this case, even assuming the AOJ had sent the appropriate request for additional records to the Veteran and his provider in March 2013, the Veteran’s claim was denied as abandoned, appealed, and certified to the Board by October 2013, well-before the 1-year period to provide the additional requested evidence had expired and the Veteran’s claim would have become considered abandoned under 38 C.F.R. § 17.131 (governing such time limit for cases under 38 U.S.C. § 1728). There is no indication in the record as to whether the requested records have been yet received. Given the above circumstances, if they have not, the AOJ should again request such records and allow the appropriate time for receipt of them pursuant to 38 C.F.R. § 17.131. If such records are received (or have already been received), the AOJ should readjudicate the Veteran’s claim on the merits. The matter is REMANDED for the following action: 1. If the medical records from RGH requested March 7, 2013, necessary to adjudicate the Veteran’s reimbursement claim on the merits, have not yet been received, again request such records from the Veteran and his provider. Allow the appropriate time for receipt of such records (1 year) pursuant to 38 C.F.R. § 17.131. 2. If such records are received (or have already been received), after completing any other necessary development, readjudicate the appeal on the merits. 3. If any benefit sought remains denied, provide a supplemental statement of the case to the Veteran and his representative. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Andrew Mack, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.