Citation Nr: 1322179 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 10-24 446 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Fayetteville, Arkansas THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred at L. E. Cox Medical Centers during the period March 13-21, 2009. REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his Spouse ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from January 1967 to January 1969. His awards and decorations include the Combat Infantryman Badge (CIB). This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2009 administrative decision by the Consolidated Fee Unit of the Department of Veterans Affairs Medical Center (VAMC) in Fayetteville, Arkansas that denied a claim by L. E. Cox Medical Centers requesting payment for inpatient medical treatment provided to the Veteran during the period March 13, 2009, to March 21, 2009. The services provided had not been pre-authorized by the VAMC. In March 2011 the Veteran and his spouse testified before the undersigned Veterans Law Judge in a hearing at the RO. At the hearing the Veteran submitted additional documents relating to his claim for reimbursement of unauthorized medical expenses, along with a waiver of initial RO review and the Board has accepted these documents for inclusion in the record on appeal. See 38 C.F.R. § 20.800. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND The Consolidated Fee Unit denied payment or reimbursement of medical expenses because the Veteran had insurance at the time of treatment. The action by the VAMC was based on the clear meaning of 38 U.S.C.A. § 1725 (2002) at the time. Since that action, Congress has significantly amended 38 U.S.C.A. § 1725 effective from February 1, 2010. The amendment provides that VA may provide reimbursement for emergency treatment when the veteran has a third-party payer, and also provides that payment may be made for treatment before the date of enactment of the amendment if the circumstances applicable to the veteran make it appropriate to do so. See Expansion of Veteran Eligibility for Reimbursement by Secretary of Veterans Affairs for Emergency Treatment Furnished in a Non-Department Facility, Pub. L. No. 111-137, Stat. 3495. Effective May 21, 2012, VA amended its regulations to be consistent with the Statute cited above. Specifically, VA amended 38 C.F.R. §§ 171.001, 17.1002, 17.1004 and 17.1005 to expand the qualifications for payment or reimbursement to veterans who receive emergency services in non-VA facilities, establish accompanying standards for the method and amount of payment or reimbursement, and provide that VA will provide retroactive payment or reimbursement for emergency medical treatment received by a veteran in certain circumstances. The amended Regulation provides that payment may be considered even if an applicant has a third-party payer, and also provides that a claim may be filed as late as one year after May 21, 2012. See amended 38 C.F.R. §§ 17.1001(g) and 17.1004(f). The amended Regulation also specifies that if the claimant has contractual or legal recourse against a third-party payer, then VA becomes the secondary payer, but will not reimburse a claimant for deductible, copayment or similar amount the veteran owes the third party. See amended 38 C.F.R. § 17.1005(e) and (f). Thus, the amended Statute is worded in such a way that payment may be considered in the Veteran's case. Whether the Veteran would actually receive payment or reimbursement under the amended Statute requires comparison of the claimed medical charges against the insurer's explanation of benefits (EOB) to determine the exact amount of VA's potential responsibility as secondary payer. (For instance, any payment the Veteran seeks to recover that constitutes a copayment would not be permitted under the amended statute.) Because the EOB is not included in the file, remand is required to enable the VAMC Fee Basis Unit to procure the EOB(s) and determine the amount of patient share, if any, for which VA may be responsible under the amended Statute. Accordingly, the case is REMANDED for the following action: 1. The VAMC Fee Processing Center should obtain the necessary hospital billing/payment documents and the explanation of benefits (EOB) from any primary insurer (and secondary insurer if appropriate) to determine how much, if any, patient share is eligible for VA payment or reimbursement under the amended 38 U.S.C.A. § 1725. 2. Then, the claim should be readjudicated under the amended 38 U.S.C.A. § 1725. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the RO or the AMC should furnish to the Veteran and his representative a Supplemental Statement of the Case and afford them the requisite opportunity to respond before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran unless he is otherwise notified, but he has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2012).