Citation Nr: 21011192 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 99-04 396A DATE: March 1, 2021 ORDER Payment or reimbursement of beneficiary travel expenses incurred on February 8, 1996, is granted. FINDING OF FACT 1. Due to circumstances such as loss of employment, the Veteran’s income in 1996—the year his $462.14 travel expenses were incurred—did not exceed the maximum annual rate of pension that he would have received under 38 U.S.C. § 1521 (as adjusted under 38 U.S.C. § 5312) if he had been eligible for pension. 2. The Veteran’s February 8, 1996, ambulance travel was medically required, and was undertaken in connection with a medical emergency. CONCLUSION OF LAW The criteria for payment or reimbursement of beneficiary travel expenses incurred on February 8, 1996, are met. 38 U.S.C. §§ 111, 5107; 38 C.F.R. §§ 70.1-70.10. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1976 to December 1982. This appeal is before the Board of Veterans’ Appeals (Board) from an April 1996 decision of the Department of Veteran’s Affairs (VA) Veterans Health Administration (VHA). It was remanded by the Board in June 1998, September 2000, and January 2006. Pursuant to 38 U.S.C. § 111 and 38 C.F.R. part 70, VHA may make payments for travel expenses incurred in the United States to help veterans and other persons obtain care or services from VHA. 38 C.F.R. § 70.1. Persons eligible for beneficiary travel payments are listed under 38 C.F.R. § 70.10, and include a veteran who travels to or from a VA facility or VA-authorized health care facility for examination, treatment, or care, and who is unable to defray the expenses of that travel. 38 C.F.R. § 70.10(a)(6). A beneficiary with no service-connected disabilities shall be considered unable to defray the expenses of travel if the beneficiary: (1) Has an income for the year (as defined under 38 U.S.C. § 1503) immediately preceding the application for beneficiary travel that does not exceed the maximum annual rate of pension that the beneficiary would receive under 38 U.S.C. § 1521 (as adjusted under 38 U.S.C. § 5312) if the beneficiary were eligible for pension during that year; or (2) Is able to demonstrate that due to circumstances such as loss of employment, or incurrence of a disability, his or her income in the year of travel will not exceed the maximum annual rate of pension that the beneficiary would receive under 38 U.S.C. § 1521 (as adjusted under 38 U.S.C. § 5312) if the beneficiary were eligible for pension. 38 C.F.R. § 70.10(c). Except in some circumstances, when payment for beneficiary travel is requested for travel that includes a special mode of transportation (which includes ambulance), VA will approve payment under this part if: (1) The travel is medically required; (2) The beneficiary is unable to defray the cost of such transportation; and (3) VHA approved the travel prior to travel in the special mode of transportation or the travel was undertaken in connection with a medical emergency. 38 C.F.R. §§ 70.2, 70.4(d). Emergency treatment means treatment for a condition 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 (this standard would be met if there were an emergency medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) that a prudent layperson who possesses an average knowledge of health and medicine could reasonably expect the absence of immediate medical attention to result in placing the health of the individual in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part). 38 C.F.R. § 70.2. Previous versions of such provisions were codified under 38 U.S.C. § 17.100, and then 38 U.S.C. § 17.143. However, as the Board is granting the claim under the current version of the regulations, it will apply that version. See Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991) (holding that where the law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant will apply unless Congress provided otherwise or permitted the Secretary to do otherwise and the Secretary did so). Reasonable doubt regarding any point is resolved in favor of the claimant. 38 U.S.C. § 5107. Payment or reimbursement of beneficiary travel expenses incurred on February 8, 1996, is granted. A VA hospital emergency room report reflects that on February 8, 1996, the Veteran was treated for back and anterior chest pain; it was noted that he had also that night treated such pain with 10 to 15 tablets of Tylenol with codeine and had 12 beers. It was further noted that the Veteran’s wife called the paramedics due to his chest pains, but when the paramedics got there the Veteran was in no distress but appeared intoxicated, and that he was in no distress at the VA hospital. He was discharged with an impression of drug ingestion and chest pain. As reflected in the April 1996 decision letter and October 1996 statement of the case, the Veteran’s claim of $462.14 in ambulance services on February 8, 1996, for transportation to the VA hospital was denied on the basis that the Veteran’s income was above the maximum pension rate allowed, and that he did not meet any other of the basic eligibility criteria. At the time of those decisions, a bill for ambulance charges of $462.14, as well as an income data sheet reflecting that the Veteran’s wife had earned $18,000 in employment income in 1995 and that the Veteran had earned $0, were of record. A VA Financial Worksheet (VA Form 10-10F (RS)) subsequently submitted by the Veteran, dated in November 1996, reflects that his spouse, in the previous calendar year (1995), had $23,940 in total income, and the Veteran had earned $0. During a December 1996 VHA hearing, the Veteran and his wife testified that they had called an ambulance after the Veteran had chest pains and had taken medication, and that they had been told before using the ambulance service that VA would pay for the ambulance. They also testified that, while the Veteran’s wife had been employed in 1995 and part of 1996, she had lost her job in March of 1996, and did not go back to work until August. The VHA hearing officer determined that the original denial would stand, noting that although the Veteran’s wife had lost her job from March to August 1996, travel eligibility determinations were based on the prior year income, and therefore the Veteran’s and his wife’s 1995 income was used in making the determination; it was also noted that the Veteran’s wife was still employed at the time the transportation in question occurred, and that her income level had not changed significantly. In its June 1998 remand, the Board noted the Veteran’s assertions of lack of income in 1996, including that his wife was not working for a significant portion of the year. It also noted the VA provisions (now codified at 38 C.F.R. § 70.10(c)) that a Veteran is considered unable to defray the expenses of travel if his or her income the year immediately preceding the application for beneficiary travel does not exceed a certain limit, or he or she is able to demonstrate that, due to circumstances such as loss of employment or incurrence of a disability, his or her income in the year of travel will not exceed the maximum annual rate of VA pension that the beneficiary would receive if eligible for pension. The Board further noted that neither the VHA hearing officer, nor VHA in adjudicating the Veteran’s claim, had considered his income in 1996, the year of his application for travel benefits, in accordance with the VA regulations. The Board thus instructed the agency of original jurisdiction (AOJ) to send the Veteran VA Forms 10-10F (RS) to report his family income for 1995 and 1996, and add the information provided by the Veteran to the claims file. In its September 2000 remand, the Board noted that the AOJ, in a December 1998 statement of the case, indicated that the Veteran had submitted information establishing that household income for 1996 was $22,020.41 in wages, not including $2703.16 in unemployment compensation, but that the financial worksheet (Form 10-10F) reflecting this information was not associated with the file before the Board, which only contained financial worksheets for other years. The Board thus again remanded the appeal, as it was unable to review it without this evidence, as discussed in the previous remand. It therefore instructed the AOJ to again afford the Veteran the opportunity to submit additional relevant evidence as to household income in 1996, and advise the Veteran as to what evidence might be relevant to establish household income. The AOJ sent the Veteran a letter, in accordance with the Board’s remand instructions, in July 2001. In its January 2006 remand, the Board noted the July 2001 letter, and that no response to it from the Veteran was of record, but that no supplemental statement of the case had been issued readjudicating the Veteran’s claim in accordance with the Board’s September 2000 remand instructions. The Board furthermore noted that, since the July 2001 letter, notice letters under the Veterans Claims Assistance Act (VCAA) had changed significantly in response to regulation and case law, and that, on remand, the AOJ must send an updated VCAA notice letter, and again ask the Veteran to submit additional evidence as to his household income in 1996, and again advise him as to what evidence might be relevant to establish household income; the AOJ was, again, to associate with the claims file any financial information the Veteran submitted establishing household income for 1996. The record does not reflect that any such notice letter was again sent to the Veteran. In September 2020, the AOJ issued a supplemental statement of the case. In it, the summary of evidence and adjudicative action taken was noted to be the January 2006 Board remand, and a hard copy of the medical record; there is no mention of any notice letter being sent to the Veteran in accordance with the Board’s 2006 remand instructions. The AOJ again denied the Veteran’s claim, as at the time of his February 1996 treatment he had no service-connected disabilities, and had an income above the established low-income threshold for consideration of payment. It was noted that the Veteran’s medical record was located and reviewed, and one appointment in February 1996 was on file, and one means test was also on file dated the following day; that means test indicated that the Veteran’s combined household income was above the established low-income threshold. Thus, the AOJ did not—in accordance with the Board’s January 2006 remand, issued 15 years earlier—send an updated VCAA notice letter, or again ask the Veteran to submit additional evidence as to his household income in 1996. There is still, in this regard, no documentation as to what the Veteran’s household income was in 1996—the information sought on each of the three previous Board remands. Moreover, in the December 2020 supplemental statement of the case, the AOJ simply considered the original income data sheet reflecting that the Veteran’s and his wife’s 1995 income only, as was considered in the initial 1996 AOJ adjudications of the Veteran’s claim—impermissibly so, which resulted in the Board’s original 1998 remand. It is now more than 25 years after the ambulance transportation in question. There is no indication that, should the Board again remand the appeal for the requested information regarding the Veteran’s 1996 household income, it would be obtained. Moreover, such a request of the Veteran—for documentation of his wife’s (to whom he is no longer married) income for the year 1996, 25 years ago—in order to substantiate his claim would be unduly prejudicial. The Board therefore finds that no more remands for further development are warranted. Given the Veteran’s and his wife’s December 1996 testimony regarding their substantial lack of income that year, and VA’s failure to produce documentation of the Veteran’s 1996 household income, and resolving reasonable doubt in his favor, the Board finds that, due to circumstances such as loss of employment, the Veteran’s income in 1996—the year his $462.14 travel expenses were incurred—did not exceed the maximum annual rate of VA pension that he would have received if he had been eligible for such pension. Furthermore, resolving reasonable doubt in the Veteran’s favor, the Board finds that the February 8, 1996, ambulance travel was medically required, and was undertaken in connection with a medical emergency. The Veteran’s wife initially called for emergency medical assistance due to the Veteran having chest pains, and when paramedics arrived, they discovered he had consumed 10 to 15 tablets of Tylenol with codeine and 12 beers. Resolving reasonable doubt in the Veteran’s favor, such circumstances were 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, and ambulance travel was medically required. Accordingly, payment or reimbursement of beneficiary travel expenses incurred on February 8, 1996, is granted. 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.