Tekle v. Wilkie

Decision Date24 September 2020
Docket Number19-4936
PartiesSamuel P. Tekle, Appellant, v. Robert L. Wilkie, Secretary of Veterans Affairs, Appellee.
CourtUnited States Court of Appeals For Veterans Claims

Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

Samuel P. Tekle VA General Counsel

Before SCHOELEN, Senior Judge. [1]

MEMORANDUM DECISION

SCHOELEN, SENIOR JUDGE

The pro se appellant, Samuel P. Tekle, appeals a July 11, 2019, Board of Veterans' Appeals (Board) decision that denied him reimbursement for emergency services incurred at a non-VA medical facility. Record (R.) at 5-9. Because the Board did not address whether VA satisfied its duty to provide the appellant with notice of the decision denying his claim and his rights to appeal, the Court will vacate the July 2019 Board decision denying reimbursement for emergency medical expenses and remand the matter for further adjudication consistent with this decision.

I. BACKGROUND

The appellant served on active duty in the U.S. Navy from July 2001 to June 2015. R. at 4264. On January 7, 2016, the appellant received medical treatment in the emergency room of the University of Florida Health (UF Health) Jacksonville Department of Emergency Medicine, a non-VA medical facility. R. at 4307. When he arrived at UF Health, he complained of lower abdominal pain with nausea for 1 week, after exposure to a sexually transmitted disease. R. at 4309. He was treated with oral medications of Zithromax and Flagyl, and an intramuscular injection of Rocephin. R. at 4319. Lab testing later showed negative results for infection with C trachomatis or N. gonorrhoeae. R. at 4317.

In January 2017, the appellant wrote a letter to VA concerning a bill he received for his treatment at UF Health. R. at 4302. He stated that he never received notice that payment of expenses incurred for his non-VA care was denied by VA, and only became aware of the bills of $1, 997 and $75 after a collection agency contacted him. Id. He averred that on January 6, 2016, he called VA in Jacksonville to find out the location of a VA emergency medical facility, because he was "suffering severe abdominal pain at that moment." Id. He also stated that he was still receiving care at the VA in Dallas, Texas, for this condition. Id. The VA North Florida/South Georgia Veterans Health System treated the appellant's letter as a Notice of Disagreement and issued a Statement of the Case on December 4, 2017. R. at 4297-4301. Later the same month, in December 2017, the appellant filed a Substantive Appeal. R. at 4295-96. In his appeal, he averred that "my condition of my stomach was severe at the time and the pain was difficult and [an] emergency for me to handle." Id. He further noted that "regarding this matter, I have a stomach condition, and still I'm under treatment and going [to] my appointments for this condition." Id.

In the July 11, 2019, decision here on appeal, the Board denied the appellant's claim for payment or reimbursement of his medical expenses, concluding that he failed to qualify for reimbursement under 38 U.S.C. §§ 1725 and 1728. R. at 5-8. The Board denied the appellant's claim under section 1725 on the basis that his condition was not an emergency as defined by 38 C.F.R. § 17.1002(b) (2020) because a prudent layperson would not have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. R. at 6-8. The Board also briefly noted that the appellant was not eligible for reimbursement under section 1728 because at the time of the treatment, the appellant was not service connected for the condition for which he sought treatment, and he did not incur the condition while participating in a VA vocational rehabilitation program. R. at 6. This appeal followed.

II. ANALYSIS

When non-VA medical care is provided but not previously authorized, VA is permitted to reimburse veterans for unauthorized medical expenses in certain circumstances. 38 U.S.C. §§ 1725, 1728; Fritz v. Nicholson, 20 Vet.App. 507, 509 (2006). Section 1728 applies to veterans who were either service connected for at least one disability at the time that they sought treatment or who were participants in a vocational rehabilitation program. See 38 U.S.C. § 1728(a)(2). Section 1725 applies to non-service-connected veterans who meet certain eligibility requirements. See 38 U.S.C. § 1725(b). The Board's determination of whether certain medical expenses are reimbursable is premised on several findings of fact that the Court reviews under the "clearly erroneous" standard of review. 38 U.S.C. § 7261(a)(4); see Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990); Cantu v. Principi, 18 Vet.App. 92, 102 (2004) (stating that a determination as to whether a medical emergency exists is a question of fact subject to review under the "clearly erroneous" standard). The Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, as well as to facilitate review in this Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 57.

Construing the appellant's informal brief liberally, he argues that his stomach dysfunction and pain necessitated emergency treatment, and he was unable to travel to the nearest VA hospital for care because he did not have access to a vehicle. Appellant's Informal Brief (Br.) at 1-3; see DePerez v. Derwinski, 2 Vet.App. 85, 86 (1993) (adopting a liberal interpretation of informal briefs from pro se appellants). The appellant requests reversal of the Board's decision and reimbursement of the medical expenses. Appellant's Informal Br. at 3. The Secretary argues that reversal is not appropriate, but concedes that the Board erred in failing to ensure that the appellant was provided notice of the initial decision denying reimbursement and his rights to appeal that decision. Secretary's Br. at 4.

In the decision on appeal, the Board did not discuss whether the appellant had received proper notice of the decision denying reimbursement for his non-VA health care expenses. See R. at 5-9. The Court agrees with the Secretary that the Board erred in failing to discuss whether the appellant received notice of the denial and was advised of his appellate rights, as required by 38 U.S.C. § 5104 and 38 C.F.R. § 17.600. See Secretary's Br. at 4. The Board's failure to discuss the appellant's notice was prejudicial for two reasons. First, the Board denied the appellant's claim under section 1728 based on factual findings that the treatment was not for a condition that was service connected or aggravating a service-connected condition, and second, it denied the claim under section 1725 based on factual findings that a prudent layperson would not have sought emergency treatment for the stomach condition the appellant described. R. at 6-8. The appellant's allegation that he had not received notice of the denial initiated the present appeal. R. at 4302. If no other documents in the record provided adequate notice, the appellant did not have an opportunity to participate effectively in the development of his claim, which may have affected the Board's factual findings and its ultimate decision. See Mayfield v. Nicholson, 444 F.3d at 1333-34; See also Prickett v. Nicholson, 20 Vet.App. 370, 376 (2006); Dingess v. Nicholson, 19 Vet.App. 473, 492 (2006).

The Court thus concludes that the Board's analysis is inadequate, prevents the appellant from understanding the precise basis for its adverse decision, and frustrates judicial review. See 38 U.S.C. § 7104(d)(1); Allday, 7 Vet.App. at 527; Gilbert, 1 Vet.App. at 56-57. Accordingly, the claim must be remanded. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy "where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate").

Although the appellant argues for reversal and reimbursement of his expenses, Appellant's Informal Brief at 3, reversal is warranted when the only permissible view of the evidence is contrary to the Board's decision, Gutierrez v Principi, 19 Vet.App. 1, 10 (2004), and the Board "has performed the necessary fact-finding and explicitly weighed the evidence," Deloach v. Shinseki, 704 F.3d 1370, 1380-81 (Fed. Cir. 2013). In this case, the appellant...

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