Citation Nr: 18160467
Decision Date: 12/28/18	Archive Date: 12/26/18

DOCKET NO. 15-27 789
DATE:	December 28, 2018
REMANDED
Payment or reimbursement of medical expenses incurred on October 26, 2013, at Ochsner Medical Center (OMC) is remanded.
REASONS FOR REMAND
According to a May 2015 statement of the case (SOC), the Veteran served on active duty from September 1983 to September 1989, and this appeal is before the Board of Veterans’ Appeals (Board) from a February 2015 decision of the Department of Veterans Affairs (VA) Veterans Health Administration (VHA). 
Pursuant to 38 U.S.C. § 1725, under certain circumstances, VA shall reimburse a veteran for the reasonable value of emergency treatment furnished the veteran in a non-Department facility.  VA regulations at 38 C.F.R. §§ 17.1000 through 17.1008 constitute the requirements under 38 U.S.C. § 1725 that govern VA payment or reimbursement for non-VA emergency services furnished to a veteran for nonservice-connected conditions.  38 C.F.R. §§ 17.1000.  
To be eligible for benefits under 38 U.S.C. § 1725, a Veteran must be an active Department health-care participant, meaning that the Veteran is both enrolled in the VA health care system and received VA health care within the 24-month period preceding the furnishing of such emergency treatment.  38 U.S.C. § 1725(b); 38 C.F.R. § 17.1002(d).
The Veteran received emergency treatment on October 26, 2013, at OMC for several injuries incurred during an bicycle accident.  As reflected in the May 2015 SOC, the agency of original jurisdiction (AOJ) denied the Veteran’s claim for payment of the expenses of such treatment on the basis that he had not received VA health care within the 24-month period preceding the furnishing of such emergency treatment, as required under 38 U.S.C. § 1725.  
As reflected in hs May 2015 notice of disagreement and June 2015 substantive appeal, the Veteran asserts that, on August 27, 2013, he physically visited a VA medical facility and reenrolled in the VA health care system, and was informed that he was enrolled and required to see a primary care physician at the VA facility; however, he was told there was a backlog of patients and the earliest availability for an appointment was December 6, 2013, which he made.  He asserts that that, after making an inquiry, he was specifically informed that in the event of an emergency he could seek medical attention from a non-VA facility and report to a VA facility at the earliest possible time, and that such treatment would be covered as long as it met VA’s situational requirements for non-VA emergency care.  In support of his claim, the Veteran submitted a “patient list” regarding his VA care, dated January 30, 2015.  This VA record indicates that the Veteran interacted with a VA medical facility, including updating personal information, on August 27, 2013, that an appointment was requested on that date, and that an appointment was subsequently scheduled on September 9, 2013.  It further indicates that such appointment took place on December 6, 2013.
In this case the Veteran’s claim must be remanded to obtain pertinent documentation absent from the claims file.  
Initially, the May 2015 SOC notes the Veteran’s dates of service, and the fact that he was not service-connected for any disability; however, no service records or basic documentation regarding the Veteran’s service, including a DD Form 214 or any other service record verifying the Veteran’s period of service, is associated with the claims file, nor any documentation of the Veteran’s service-connected disabilities, or lack thereof.  Also absent from the claims file is the Veteran’s original claim or application for benefits, and the original decision letter denying benefits.  In this regard, the May 2015 SOC notes the Veteran’s original claim for reimbursement as having been received on December 1, 2014.  There was no indication from the AOJ that the Veteran filed a claim within 90 days after the date that he was discharged from OMC or the date he finally exhausted, without success, action to obtain payment or reimbursement for the treatment from a third party; his claim for payment or reimbursement therefore appears to be untimely, but there was no mention of this by the AOJ or explanation of whether his claim was actually considered timely for any reason.  See 38 C.F.R. § 17.1004(d).  Moreover, in this regard, given the longer, 2-year deadline for filing claims for reimbursement under 38 U.S.C. § 1728, documentation verifying what service-connected disabilities, if any, the Veteran has is pertinent.  See 38 C.F.R. § 17.126.
Furthermore, there are no VA treatment records associated with the claims file except for the January 2015 patient list submitted by Veteran, which reflects at least some treatment and interaction—and scheduling of a later appointment—with VA on August 27, 2013.  Such treatment records from August to December 2013, including any record of the Veteran’s interaction with VA at a medical facility on August 27, is pertinent considering the Veteran’s assertions in this case and must be obtained.
The matter is REMANDED for the following action:
1. Make all reasonable attempts to obtain and associate with the claims file pertinent documentation including:
(a.)  A DD Form 214 or any other service record verifying the Veteran’s period of service;
(b.) Documentation verifying what service-connected disabilities, if any, the Veteran has;
(c.) The Veteran’s original claim or application for benefits;
(d.) The original decision letter denying benefits;
(e.) All pertinent VA treatment records from August to December 2013, including any records of the Veteran’s interaction with VA at a medical facility on August 27.
2. After completing the above and any other necessary development, readjudicate the appeal, to include a determination regarding the timeliness of the Veteran’s claim for reimbursement.  If any benefit sought remains denied, provide a supplemental statement of the case to the Veteran.
 
JONATHAN B. KRAMER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Andrew Mack, Counsel

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