Citation Nr: 21001909 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 14-11 037A DATE: January 12, 2021 REMANDED Entitlement to payment or reimbursement of medical expenses incurred on February 11, 2013, at Gateway Medical Center (GMC), is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1981 to June 1989. This appeal is before the Board of Veterans’ Appeals (Board) from a decision of the Department of Veterans Affairs (VA) Veterans Health Administration. In February 2019, the Veteran and his wife testified at a Board hearing before the undersigned Veterans Law Judge. A transcript is included in the claims file. The Veteran was treated at the GMC emergency room (ER) on February 11, 2013, for sharp right lower back pain radiating to the leg. He was evaluated, treated, and discharged with a diagnosis of sciatica. As reflected in statements from the Veteran and his wife, and their February 2019 testimony before the Board, they assert that the Veteran reasonably believed that his severe right side pain and numbness symptoms, particularly given his other medical conditions, were a medical emergency and that delay would have been hazardous to his life or health. They contend that they contacted VA regarding the Veteran’s condition, and were told to call 911 and request an ambulance to take him to the nearest ER, which they did. They further assert that the nearest appropriate VA facility to them was 70 to 80 miles away and not feasibly available during his emergency. At the time of the treatment in question, the Veteran had a service-connected disability considered by VA to be permanent and total. In the absence of prior appropriate authorization, 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, including for transportation, 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. Entitlement to payment or reimbursement of medical expenses incurred on February 11, 2013, at GMC is remanded. In this case, the electronic claims file contains the Veteran’s August 2013 substantive appeal to the Board, medical records and bills related to the Veteran’s February 11, 2013, treatment at GMC, statements from his wife attesting to the Veteran’s emergency situation, and a statement from his treating VA physician discussing his medical disorders and noting his treatment at GMC. However, it does not contain an initial decision letter denying a claim on appeal, a notice of disagreement with the decision, a statement of the case from the agency of original jurisdiction (AOJ), or any other documentation explaining on what basis the AOJ denied the Veteran’s claim, or what medical expenses, exactly, are at issue, including whether there are any ambulance or other transportation expenses. Also, while the Veteran and his wife have asserted that they contacted VA on February 11, 2013, prior to visiting the GMC ER, there are no VA notes of such contact in the claims file. Under these circumstances, unfortunately, the Veteran’s appeal must be remanded for the AOJ to associate such documents and records with the file before the Board makes a decision on the merits of any claim on appeal. The matter is REMANDED for the following action: 1. Associate with the claims file, to the extent possible, the initial decision letter denying the claim on appeal, the Veteran’s notice of disagreement, the statement of the case, and any other documentation pertaining to the basis of the denial of the Veteran’s claim and what medical expenses related to the Veteran’s February 11, 2013, treatment at GMC are at issue. 2. Associate with the claims file any VA records of contact with the Veteran on February 11, 2013, pertaining to his claimed medical emergency. 3. After completing the above and any other necessary development, readjudicate the appeal. If any benefit sought remains denied, provide a supplemental statement of the case to the Veteran L. B. CRYAN 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.