BVA9506440 DOCKET NO. 93-13 463 ) DATE ) ) On appeal from a decision by the Department of Veterans Affairs Medical Center in Albany, New York THE ISSUE Entitlement to reimbursement of cost incurred as a result of payment of Medicare premiums. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Keith W. Allen, Associate Counsel INTRODUCTION The veteran served on active duty from March 1968 to March 1970. This matter comes to the Board of Veterans' Appeals (Board) from a decision by the Department of Veterans Affairs (VA) Medical Center (VAMC) in Albany, New York, which denied the veteran's claim for reimbursement of cost incurred as a result of Medicare premiums. REMAND The veteran, who is service-connected for multiple residuals of a kidney disorder, underwent kidney transplant surgery while hospitalized in November 1989 at Albany Medical Center. Records show that, prior to his surgery, he had been undergoing hemodialysis (and related treatment) at a local VAMC. During a June 1991 hearing, the veteran and his representative summarized the events which led to his undergoing kidney transplant surgery at the private hospital on the date in question. The veteran claimed that personnel at the local VAMC referred him to Albany Medical Center in late 1988 so that his name could be placed on a waiting list to receive a kidney, but that after he began to undergo hemodialysis therapy in June 1989, he was told by personnel at the VAMC that VA would not pay the expenses of surgery and that he should sign up for Medicare to cover these costs. He testified that his private insurance carriers (Blue Cross Blue Shield and Metropolitan Life) ultimately paid the costs he incurred in connection with surgery, but that Medicare, who also covered his surgery, did not pay any portion of the bill, even though he had paid approximately $700.00 in premiums for coverage under a health insurance policy with Medicare. He also said that he used to have health insurance coverage under a policy with CHAMPUS (as a retired veteran), but that he mistakenly thought he would be disqualified from that policy if he obtained coverage under Medicare, so he went ahead and started paying premiums to Medicare as a means of maintaining insurance for himself and his family. In other testimony concerning his referral to Albany Medical Center from the local VAMC, the veteran said he was told that, because he was working as a full-time employee, he would not receive priority on the waiting list for his kidney transplant and that it would not have been feasible for him to have had the transplant performed at a VAMC because of the distance involved (he indicated that the nearest VAMC that was equipped to perform the procedure was located in Virginia and that, since he would require follow-up visits, this would not have been geographically or economically feasible because he lives in the up-state New York area). According to the statement of the case, the veteran was apprised of VA's policy against payment of medical expenses incurred in connection with surgery for a kidney transplant (at a time prior to when the procedure was actually performed). The statement of the case further notes that VA's policy prohibits payment of such expenses where they have been paid by another federal agency (i.e., Medicare); however, the veteran denies that Medicare has made any payments. Reportedly, when apprised of VA's prohibition against payment prior to his surgery, he opted for payment of his medical expenses either through his private insurance (CHAMPUS) and/or Medicare. However, no legal or regulatory authority was mentioned in the statement of the case as a basis for the decision. 38 U.S.C.A. § 7105(d)(1) (West 1991) provides, inter alia, that a statement of the case shall include (a) a summary of the evidence in the case pertinent to the issue or issues with which disagreement has been expressed and (b) a citation to pertinent laws and regulations and a discussion of how such laws and regulations affect the agency's decision. It remains unclear whether the veteran has submitted a claim upon which relief could be granted, in light of the fact that all of the expenses he incurred at Albany Medical Center have reportedly already been by his private insurance, and because he is only seeking payment of the costs of an insurance "premium" he says he paid to Medicare (as opposed to, for example, payment of expenses incurred for "medical services" rendered). See 38 C.F.R. §§ 17.30, 17.50b (1994); Sabonis v. Brown, 6 Vet.App. 426 (1994). Nevertheless, he argues that VA should be held responsible for reimbursing him for the money he has spent paying his Medicare premiums because the treatment involved a service-connected disability and because VA personnel allegedly did not give him adequate notice concerning its policy against payment of expenses such as those in question. Since the veteran is asserting that he has incurred some additional "out-of-pocket" expenses as a result of treatment for a service-connected disability, the Board believes that further development of his claim is warranted to ensure due process of law and in order for VA to comply with its duty to assist him in developing evidence pertinent to his claim. See 38 U.S.C.A. § 5107(a). Therefore, the case is REMANDED for the following development: 1. The VAMC should conduct a general accounting to determine what, if any, medical expenses remain unpaid from the veteran's November 1989 hospitalization at Albany Medical Center. The total amount of premiums that the veteran has reportedly paid to Medicare should be identified, and he should state in definitive terms on what basis he believes financial relief should be granted by VA, given that there appear to be no remaining unpaid hospital expenses. 2. The VAMC should make a determination of whether a VAMC was "feasibly available" to perform the kidney surgery that the veteran needed, considering such factors as location of the facility, whether it was equipped to perform the procedure needed, and the relative urgency of the treatment involved. If it is determined that a VAMC was not feasibly available to perform the treatment needed, then officials at the VAMC should make a determination as to whether the treatment (including surgery) that the veteran received at Albany Medical Center was ever authorized by VA. See 38 U.S.C.A. §§ 17.50b and 17.50d. 3. If the treatment in question was not authorized by VA, then the veteran's claim should be considered under the provisions governing payment of unauthorized medical expenses. See 38 U.S.C.A. § 1728 (West 1991) and 38 C.F.R. § 17.80. When this action is completed, if any benefit sought is denied, the veteran and his representative should be furnished a supplemental statement of the case (containing the pertinent legal/regulatory authority used to adjudicate the claim) and given an opportunity to respond. Thereafter, the case should be returned to this Board for further appellate consideration. M. CHEEK Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1994).