Citation Nr: 1648539	
Decision Date: 12/30/16    Archive Date: 01/06/17

DOCKET NO.  13-12 250	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Gainesville, Florida


THE ISSUES

1.  Entitlement to payment or reimbursement for the cost of unauthorized medical treatment provided from October 20-24, 2013 by Capital Regional Medical Center.

2.  Entitlement to payment or reimbursement for the cost of unauthorized medical treatment provided from March 9-13, 2014 by Archbold Memorial Hospital.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

M. Peters, Counsel



INTRODUCTION

The Veteran had active duty service from March 1965 to September 1967, during which he had service in the Republic of Vietnam from June 1966 to November 1966.  The Veteran is shown to be service-connected for coronary artery disease and schizophrenia.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2012 and June 2014 letters of determination by the Gainesville, Florida VAMC, which in pertinent part denied the Veteran reimbursement for unauthorized medical expenses for a nonservice-connected right leg disorder from Capital Regional Medical Center and Archbold Memorial Hospital, respectively.  Those claims are before the Board at this time.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


REMAND

As noted in 38 C.F.R. § 17.1004(a), both the Veteran (or other person or organization) who paid for the treatment, or the facility that furnished that treatment, may be a proper claimant for payment or reimbursement of unauthorized medical expenses under 38 U.S.C.A. § 1725.

The Board, after review of the claims file, is unable to ascertain who the claimant is in this case.  The statements of the case do not delineate who filed the claim for benefits in this case, whether that would be the medical providers or the Veteran himself.  Such delineation is vitally important in this case, as it appears that the medical providers may have filed the initial claims for payment of medical expenses in this case, although it does not appear those entities were informed of the decision, but rather notice of the decision was sent to the Veteran instead.  It would appear therefore that the basis of this appeal is predicated on the Veteran being an intervening party, or possibly an interloper.  Such a status by the Veteran may potentially affect the Board's jurisdiction in this case.  See Braan v. McDonald, 28 Vet. App. 232 (2016) (finding that the Veteran's notice of disagreement in a claim by his spouse for benefits for eligibility for Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPVA) resulted in an ultra vires decision due to the lack of the Board having jurisdiction over that claim, and that ultra vires decision was a nullity and the Board's decision must be dismissed).

Moreover, if the Veteran is a proper claimant in this case, the Board is currently unable-based on the evidence of record-to ascertain what amount, if any, the Veteran is personally liable for such that he is a proper claimant for payment or reimbursement of medical expenses in this case.  

Furthermore, regarding the claim for medical expenses stemming from treatment by Capital Regional Medical Center, that claim was denied based on the Veteran having a third-party insurance contract (i.e., Medicare Part A).  In a recent precedential decision, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 17.1002(f), which provides that a veteran must not have coverage "in whole or in part" under a health-plan contract for the emergency treatment as a condition of eligibility for VA reimbursement of unauthorized medical expenses, is invalid because inconsistent with the current version of 38 U.S.C.A. § 1725, the statutory section implemented by § 17.1002 of the regulations.  See Staab v. McDonald, 28 Vet. App. 50 (2016).  In short, the Court found that partial coverage under a health-plan contract, including under Medicare Part A and Part B, for the non-VA emergency treatment at issue, is not a bar to eligibility for VA reimbursement of any remaining uncovered balance under 38 U.S.C.A. § 1725.  See Id. (vacating and reversing a determination by the Board that partial Medicare coverage was a bar to section 1725 benefits, and remanding the matter for readjudication).  To the extent that section 17.1002 of the regulations provides otherwise, it has been held invalid by the Court.  Id.  

Consequently, it appears that the basis for the denial of medical expenses for the Capital Regional Medical Center treatment in October 2012 is not valid and the Board is unable to address the other merits of the claim in this case, as no other elements of the claim were addressed by the AOJ in its decision.

Respecting the claim for medical expenses stemming from Archbold Memorial Hospital, that claim was denied because the claim was received after the 90-day period for filing a claim.  First, the Board is unable to ascertain when the claim was filed, and therefore, the Board is unable to understand the basis of that decision.  Moreover, it would appear that the Veteran's June 2014 notice of disagreement may potentially be a claim for benefits in his own right that may be considered timely filed under 38 C.F.R. § 17.1004(d)(3).  The AOJ failed to consider this aspect in any previous adjudication.  

In light of the above deficiencies, the Board must remand the case in order for the AOJ to properly develop and adjudicate the claims for payment or reimbursement of unauthorized medical expenses in this case, to include correctly sending adjudication notice to the appropriate claimants in the case, particularly the medical providers if such were the initial claimants for payment.  

Accordingly, the case is REMANDED for the following action:

Properly develop and adjudicate the medical reimbursement claims, including sending notice of the adjudicative action to the proper claimant(s), particularly the medical providers if such were the initial claimants for payment in this case.  Additionally, obtain all evidence respecting the Veteran's medical expenses for which he is personally liable for, or for which the medical providers are attempting to obtain payment for, stemming from the two incidents of treatment.  If the benefits sought on appeal remain denied, the Veteran and his representative, or all other proper claimant(s), should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board.  The AOJ should specifically address the merits of each claim in detail, with careful consideration to the holding of Staab v. McDonald, 28 Vet. App. 50 (2016), as noted above, as well as the timeliness provisions of 38 C.F.R. § 17.1004(d)(3).  

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

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.A. §§ 5109B, 7112 (West 2014).



_________________________________________________
M. HYLAND
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 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) (2016).
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