10-38 708, 10-38 708

Background

Veteran served in the Marine Corps and National Guard; hospitalized privately for endocarditis and sepsis between April 24, 2010 and May 21, 2010 at Southside and Long Island Jewish Hospitals.
VHA Fee Basis Office denied reimbursement for those private emergency services, finding the Veteran had not received VA care within the 24 months before the hospitalization and was thus ineligible under 38 U.S.C. § 1725.
VHA decisions and the statement of the case relied on an internal view that VA prescription refills do not constitute "medical services" or "care" within the 24‑month lookback.
The Board reviewed statutory definitions and concluded prescription refills fall within the statutory definition of "medical services" (including preventive health services such as drug profile maintenance and patient drug monitoring).
The Board found gaps in the record regarding whether hospitals attempted to contact VA for transfer, whether transfer to VA on May 5, 2010 would have been feasible given the Veteran's medical stability, and whether nearby VA critical care capacity was available.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Veteran received "care" at VA within 24 months prior to private emergency hospitalization, making him eligible for reimbursement under § 1725	Veteran contends prior VA prescription refills (Oct 2008) constitute VA care within 24 months and thus support reimbursement eligibility	VHA argued prescription refills do not constitute receiving medical services/care under the statute, so reimbursement is barred	Board held prescription refills are encompassed by the statutory definition of "medical services," so the Veteran did receive care within the statutory period; VHA's reasoning was legally incorrect
Whether hospitals attempted to contact VA about transfer and whether the Veteran attempted to obtain transfer to VA	Veteran lacked an opportunity (in record) to show attempts; he should be allowed to submit evidence of attempts or evidence that transfer would be unsafe	VHA record contained no documentation hospitals contacted VA or Veterans' attempts to transfer	Board remanded to provide Veteran notice and opportunity to submit evidence showing attempts to contact VA or that transfer would have been unsafe
Whether transfer to VA on May 5, 2010 would have been medically feasible given Veteran's condition	Veteran argues transfer may have been infeasible due to critical condition	VHA did not develop evidence on medical stability or on VA facility availability	Board remanded for an internal medicine expert opinion on when the Veteran reached medical stability and for inquiry of nearest VA critical care availability on May 5, 2010
Adequacy of VHA's adjudication and need for further development	Veteran (and Board) asserts adjudication relied on unsupported policy interpretations and incomplete factual development	VHA relied on internal policy interpretations and dispatched denials	Board remanded for additional development (notice to Veteran, expert medical opinion, contact with VA critical care facility) and re-adjudication

Key Cases Cited

Kutscherousky v. West, 12 Vet. App. 369 (1999) (remand procedures and appellant's right to submit additional evidence following a Board remand)