Citation Nr: 1761182
Decision Date: 12/29/17 Archive Date: 01/02/18
DOCKET NO. 14-07 360A ) DATE
On appeal from the
Department of Veterans Affairs Medical Center in Cleveland, Ohio
Entitlement to payment or reimbursement of unauthorized medical expenses incurred at Summa Health System on November 12, 2010.
Veteran represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
The Veteran and his spouse, G. E.
ATTORNEY FOR THE BOARD
L. Pelican, Counsel
The Veteran served on active duty in the Army from November 2000 to August 2005, with service in Afghanistan and Iraq. The Veteran was awarded the Combat Infantryman Badge and Parachutist Badge, among other decorations.
This case comes before the Board of Veterans’ Appeals (the Board) from a March 2011 decision by the Department of Veterans Affairs Medical Center (VAMC) in Cleveland, Ohio, which denied the Veteran’s claim of entitlement to payment or reimbursement of unauthorized medical expenses incurred at Summa Health System on November 12, 2010.
The Veteran had a hearing before the undersigned Veterans’ Law Judge (VLJ) in August 2015. A transcript of that proceeding has been associated with the claims file.
This case was remanded by the Board for additional development in November 2015. For the reasons discussed below, another remand is required. Stegall v. West, 11 Vet. App. 268 (1998).
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required.
The November 2015 remand directed the VAMC to associate with the claims file outstanding VA medical and administrative records from November 12, 2010. Although additional VA medical records were added to the claims file, several fee-basis entries were listed as scanned into VistA Imaging. As it is unclear whether these records are duplicative of the records from Summa Health Systems already on file or are original records, the VAMC should associate these records with the claims file.
The remand also directed the VAMC to secure copies of clinical reviews dated March 11, 2011; July 28, 2011; and January 14, 2013 that were cited in the October 2013 Statement of the Case and November 2017 Supplemental Statement of the Case. These clinical reviews were not obtained nor does the record suggest any attempt was made to do so. Stegall v. West, 11 Vet. App. 268 (1998). As these reviews pertain to the Veteran’s reimbursement claim, the VAMC should locate the reviews and associate them with the claims file.
If these clinical records do not exist, a specific finding to that effect must be made in writing and associated with the claims file.
Lastly, the Board observes that during the pendency of the last remand the Veteran obtained new representation. Review of the Veterans Appeals Control and Location System (VACOLS) indicates the Veteran’s representative was provided the opportunity to submit argument on behalf of the Veteran but did not do so. The Veteran is entitled to representation at all stages of an appeal. 38 C.F.R. § 20.600 (2017). In order to preserve the Veteran’s due process rights, his representative should be given another opportunity to review the record and provide argument in response to the denial of the claim on appeal.
Accordingly, the case is REMANDED for the following actions:
1. Associate with the claims file any non-VA treatment records that were scanned into VistA Imaging. All attempts to obtain these records should be documented in the file. Any negative replies must be in writing, and associated with the file.
2. Next, secure copies of the clinical reviews dated March 11, 2011; July 28, 2011; and January 14, 2013. These reviews addressed whether there was a medical emergency and whether VA facilities were feasibly available. If no rationale was provided for the clinical reviews, the VAMC may seek clarification from the authors (or another suitably qualified physician if they are unavailable). If these clinical records do not exist, a specific finding to that effect must be made in writing and associated with the claims file.
3. After performing the requested development, the case should be reviewed by the VAMC on the basis of the additional evidence obtained. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.
The Veteran has the right to submit additional evidence and argument on matter 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. §§ 5109B, 7112 (2012).
K. J. ALIBRANDO
Veterans’ Law Judge, Board of Veterans’ Appeals
Under 38 U.S.C. § 7252 (2012), 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).