Citation Nr: 1430294 Decision Date: 07/03/14 Archive Date: 07/10/14 DOCKET NO. 06-03 656A ) DATE ) ) On appeal from the Department of Veterans Affairs Outpatient Clinic in Columbus, Ohio THE ISSUE Entitlement to payment or reimbursement for unauthorized medical expenses incurred for the period January 24, 2004, to January 29, 2004, at Riverside Methodist Hospital. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran, his fiancée, and his son ATTORNEY FOR THE BOARD R. Giannecchini, Counsel REMAND The Veteran had active military service from September 1967 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) following a February 2004 decision of the Department of Veterans Affairs Outpatient Clinic (VAOPC) in Columbus, Ohio. In August 2007, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge. In January 2008, the Board remanded the Veteran's claim to the VA outpatient clinic in Columbus, Ohio for additional development. The Veteran's claims folders have since been returned to the Board. A review of those folders (to include the Veteran's electronic records) does not reflect action has been taken by the VAOPC Columbus on the Veteran's remanded claim. A notation in the claims folders, apparently from Cleveland RO personnel, notes that the claims folders had been sent to the VAOPC Columbus twice in light of the Board's remand but had been returned to the RO without any action taken. Therefore, the Veteran's claim on appeal is again remanded to the VAOPC Columbus. Furthermore, at the above-noted August 2007 hearing, the Veteran testified that as a result of his medical emergency on January 24, 2004, he was also financially liable for emergency transportation costs and for treatment he received at Southeastern Ohio Regional Medical Center. The Board infers from the Veteran's testimony an additional claim for payment or reimbursement for unauthorized medical expenses incurred for emergency transportation costs and for treatment received at Southeastern Ohio Regional Medical Center. These issues, while not currently in appellate status, should be considered by the Columbus VAOPC in the first instance. Finally, the Board also wishes to point out that Congress amended 38 U.S.C.A. § 1725 in February 2010. Under the pre-amendment version, a veteran could be deemed "personally liable" for his emergency treatment if he or she had no other contractual or legal recourse against a third party that would, in whole or in part, extinguish such liability to the provider. This provision essentially dictated that if a veteran had a relationship with a third party entity (e.g. Medicare) that would require the third party entity to pay any part of his medical expenses for emergency care in a non-VA facility, then the veteran could not seek reimbursement for the remaining balance of the expenses from VA, even if the balance was large. The amended version of the statute strikes the words "or in part" from section 1725(b)(3). See Public Law No. 111-137 § (a)(1). The third prong of section 1725(b)(3) now only precludes a veteran from exercising his right to reimbursement from VA for emergency care in a non-VA facility if a third party (such as Medicare) is wholly responsible for the medical fees he incurs. Congress inserted into the statute additional provisions defining VA's role when a third party is partially liable for a veteran's medical expenses. Congress instructed that in any case in which a third party is financially responsible for part of a veteran's emergency treatment expenses, the Secretary shall be the secondary payer. 38 U.S.C.A. § 1725(c)(4)(B). Furthermore, while the amended version of 38 U.S.C.A. § 1725 eliminated the complete bar to VA payment for unauthorized emergency expenses where there is other insurance coverage (such as Medicare), it did not provide for payment of all amounts not paid by the other insurance or third party. Rather, the amended version of 38 U.S.C.A. § 1725 expressly provides that VA may not reimburse a veteran for any copayment or similar payment that the veteran owes the third party or for which a veteran is responsible under a health-plan contract. 38 U.S.C.A. § 1725(c)(4)(D). As such, a veteran would not be entitled to payment or reimbursement of the coinsurance or deductible amounts for which he is responsible under a contract with Medicare. In readjudicating the Veteran's claim, the VAOPC Columbus should take into consideration the amended 38 U.S.C.A. § 1725, if warranted. Accordingly, the case is REMANDED for the following action: 1. The Columbus VAOPC should review the claims file and ensure that all notification (in particular, correspondence specifically addressing the Veterans Claims Assistant Act of 2000 (VCAA) notice and duty-to-assist provisions) and development procedures per the statutory provisions at 38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107 are met. 2. Following the development above, the Columbus VAOPC should readjudicate the Veteran's claim on appeal, in light of all pertinent evidence (to include the Veteran's August 2007 hearing testimony) and legal authority (specifically, 38 U.S.C.A. §1728 (West 2002); 38 C.F.R. §17.120 (2013); and, if warranted, 38 C.F.R. §17.125 (2013) (revised)). 3. If the benefit sought is not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (to include citation to all pertinent legal authority). In the supplemental statement of the case (SSOC), the Columbus VAOPC must discuss why it was feasible for the Veteran to be transferred from Southeastern Ohio Regional Medical Center to a VA medical facility (as contrasted to Riverside Methodist Hospital), and why such transfer would not have been unreasonable or impractical. In doing so, the Columbus VAOPC's discussion should address the Veteran's medical condition at the time of his transfer from Southeastern Ohio Regional Medical Center and those VA medical facilities that were available on January 24, 2004, to treat the Veteran in light of his specific medical condition. 4. Following the issuance of the SSOC, the Veteran and his representative should be afforded an opportunity to respond before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims remanded by the Board 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. 2013). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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) (2013).