Citation Nr: 0004458 Decision Date: 02/18/00 Archive Date: 02/23/00 DOCKET NO. 98-13 776A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Biloxi, Mississippi THE ISSUE Entitlement to payment or reimbursement of medical expenses from unauthorized medical treatment rendered at the Columbia West Florida Regional Medical Center on December 21, 1997. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD T. Mainelli, Associate Counsel INTRODUCTION The appellant had active service from November 1989 to August 1996. This case comes before the Board of Veterans Appeals (Board) on appeal from a February 1998 decision, in which the Department of Veterans Affairs Medical Center in Biloxi, Mississippi (AOJ) denied the appellant's request for payment or reimbursement of medical expenses from unauthorized medical treatment rendered at the Columbia West Florida Regional Medical Center on December 21, 1997. The Board notes that, in an Informal Hearing Presentation dated in December 1998, the appellant's representative appears to have raised the claim for entitlement to entitlement to a total disability rating for compensation on the basis of individual unemployability (TDIU). This claim is referred to the Regional Office (RO) for appropriate action. REMAND The appellant contends that she is entitled to payment or reimbursement of medical expenses from unauthorized medical treatment rendered at the Columbia West Florida Regional Medical Center (Columbia) on December 21, 1997. In this respect, she argues that her emergency room treatment for loss of control of her mouth and facial muscles stemmed from an adverse reaction to VA prescribed medication for control of her service connected gastroenteritis. Indeed, the emergency room report from Columbia notes her report of being prescribed Compazine by VA for gastroenteritis symptoms the previous day. She was given intravenous Benadryl treatment for "extrapyramidal symptoms probably secondary to Compazine." A VA outpatient note dated the next day concurred with a finding of dyskinesia as an adverse reaction to Compazine. In pertinent part, entitlement to reimbursement or payment for medical expenses incurred without prior authorization from the VA requires proof of the following three factors: 1) that treatment was either for an adjudicated service- connected disability, a nonservice- connected disability associated with and held to be aggravating an adjudicated service- connected disability, or for any disability of a veteran who has a total disability permanent in nature resulting from a service-connected disability; and 2) that a medical emergency existed of such nature that delay would have been hazardous to life or health; and 3) that no VA or other Federal facilities were feasibly available and an attempt to use them beforehand or obtain prior VA authorization for the services required would not have been reasonable, sound, wise, or practicable, or treatment had been or would have been refused. See 38 U.S.C.A. § 1728 (West 1991 & Supp. 1995); 38 C.F.R. § 17.120 (1999). All three factors must be met to prevail in a claim for reimbursement. See Hayes v. Brown, 6 Vet. App. 66, 68 (1993). Based upon the above- cited medical records, the Board must conclude that the appellant has satisfied her burden of showing treatment for an adjudicated service- connected disability. In this respect, she may not have been treated for symptoms of her service connected gastroenteritis, but her emergency room visit was precipitated by an adverse reaction to medication, presumably prescribed by VA, for control of her gastroenteritis symptoms. Put in another way, she received treatment for a condition secondary to her service connected gastroenteritis. See generally 38 C.F.R. § 3.310 (1999). Nonetheless, the question remains whether any or all of the treatment in question rendered at Columbia on December 21, 1997 was for an "emergent" medical condition, and whether VA facilities were "feasibly available" to provide such treatment at that time. These two questions are interrelated. See Hennessey v. Brown, 7 Vet.App. 143, 147 (1994). The RO has not developed or addressed these issues, and must do so prior to any further adjudication by the Board. Bernard v. Brown, 4 Vet.App. 384 (1993) (the Board must provide a claimant adequate notice and opportunity to respond to issues not previously addressed by the RO). With regard to the "emergent" nature of the treatment in question, the statute and regulations specify that a "medical emergency" must be of such a nature that delay in obtaining treatment would have been hazardous to life and health. This issue is inherently a medical question best answered by a physician. See Cotton v. Brown, 7 Vet. App. 325, 327 (1995). Accordingly, upon remand, the AOJ must obtain a medical opinion which addresses the question of emergent treatment based on a thorough analysis of the specific facts surrounding the appellant's emergency room treatment at Columbia on December 21, 1997. Furthermore, a VA facility may be considered as not feasibly available when the urgency of the applicant's medical condition, the relative distance of the travel involved, or the nature of the treatment required makes it necessary or economically advisable to use non- VA facilities. 38 C.F.R. § 17.53 (1999). Upon remand, the AOJ should obtain clarification as to the availability and distance of the closest VA medical facility able to provide the treatment provided at Columbia. Accordingly, this case is REMANDED for the following development: 1. The AOJ should obtain documentation of the feasible availability of a VA medical facility to provide the same treatment rendered at Columbia on December 21, 1997. In this respect, the AOJ should obtain from appropriate VA personnel affiliated with the closest medical facilities to Columbia statements as to whether or not those facilities had the staff and equipment necessary to provide the particular medical care which the veteran received on December 21, 1997. The proximity of such facility to Columbia should be specifically addressed. 2. The appellant is hereby informed of her right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). 3. Following completion of the above- mentioned development, the Medical Administrative Service (MAS) file and claims file is to be provided to the Chief Medical Officer or his/her designee for opinion on the following questions: (1) whether the services that were rendered at Columbia on December 21, 1997 were rendered in a medical emergency of such nature that delay would have been hazardous to the appellant's life or health; and, (2) whether VA facilities or other Federal facilities were feasibly available at that time and an attempt to use them beforehand or obtain prior VA authorization for the service required would have been reasonable, sound, wise, or practicable. A complete rationale for this opinion should be provided, and the appellant's contentions should be addressed. Thereafter, a copy of the opinion should be furnished to the appellant and other copies should be associated with the appellant's claims folder and the Medical Administration Folder. 4. After completion of the above- referenced development, the RO should readjudicate the claim for entitlement to payment or reimbursement of medical expenses from unauthorized medical treatment rendered at the Columbia West Florida Regional Medical Center on December 21, 1997. In so doing, the RO should consider all of the evidence of record, including any additional medical evidence obtained by the RO pursuant to this remand. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. NANCY I. PHILLIPS Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).