Citation Nr: 1620109 Decision Date: 05/17/16 Archive Date: 05/27/16 DOCKET NO. 15-10 464A ) DATE ) ) On appeal from the Department of Veterans Affairs Veterans Integrated Service Network 20 Northwest Network Payment Center THE ISSUE Entitlement to reimbursement or payment for unauthorized medical expenses at a non-VA facility on May 8, 2014 under the Millenium Health Care Act, 38 U.S.C.A. § 1725 (West 2014). ATTORNEY FOR THE BOARD V. Chiappetta, Counsel INTRODUCTION The Veteran served on active duty from April 1946 to October 1947. This appeal arises from an administrative determination of the Department of Veterans Affairs (VA) Veterans Integrated Service Network (VISN) 20 Northwest Network Payment Center. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. On May 8, 2014, the Veteran received emergency medical care at Providence Mount Carmel Hospital, a private hospital open to the public. 2. A VA or other Federal facility/provider was not feasibly available to provide the Veteran emergency care, and an attempt to use such a facility before going to Providence Mount Carmel Hospital would not have been considered reasonable by a prudent layperson. 3. The Veteran has no service-connected disabilities, nor was he enrolled in a VA rehabilitation program at the time he needed emergency care on May 8, 2014. He is therefore is ineligible for reimbursement of his medical expenses under 38 U.S.C.A. § 1728. 4. The Veteran is financially liable for payment of the emergency treatment. The bill for the medical services provided on May 8, 2014 was partially paid by the Veteran's Medicare insurance. There are no other remedies reasonably available to the Veteran or provider against a third party for payment of the remaining balance. 5. At the time of his emergency treatment, the Veteran was an active VA healthcare participant, with a visit to VA for treatment within two years. CONCLUSION OF LAW The criteria for payment or reimbursement of that portion of medical expenses incurred on May 8, 2014 that has not already been paid by Medicare insurance, have been met. 38 U.S.C.A. § 1725 (West 2014); 38 C.F.R. §§ 17.1002 (2015); Staab v. McDonald, No. 14-0957, 2016 WL 1393521 (Vet. App. Apr. 8, 2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Given the favorable disposition below, there is no need to discuss the potential applicability of VA's duties to notify and assist the Veteran in this case. The facts in this case are not in dispute. On May 8, 2014, the Veteran went to VA's outpatient clinic in Coleville, WA to have blood drawn. After the draw, the Veteran started experiencing left sided chest pain. He had a history of stable angina and two prior myocardial infarctions. Upon complaint of pain, the Veteran was placed immediately in a wheelchair and transported across the street to the emergency room at Providence Mount Carmel Hospital. There, he was afforded a physical examination and an electrocardiogram (EKG). Upon review of the results, the Veteran was given a dose of aspirin and nitroglycerin, and his pain completely resolved. He was discharged that day. See the Veteran's May 8, 2014 Emergency Department Encounter Note; see also a November 5, 2015 report of contact. Although VA transported the Veteran to Providence Mount Carmel Hospital for his emergency chest pain treatment, there is no specific evidence demonstrating that VA authorized payment or reimbursement for such care. Indeed, the bill from Providence Mount Carmel Hospital totalling $2,649.80 was partially paid through Medicare insurance in the amount of $2,176.18. The Veteran argues that VA should pay that portion of the bill that Medicare insurance did not cover ($473.62). Generally, in order to be entitled to payment or reimbursement of private medical expenses not previously authorized, a claimant must satisfy the conditions outlined by 38 U.S.C.A. § 1728 or 38 U.S.C.A. § 1725 and the implementing regulations. The Board initially notes that there is no indication from the record, nor has the Veteran alleged, that he meets any criterion for repayment under 38 U.S.C.A. § 1728, which is applicable where a veteran has treatment for (1) a service-connected disability; (2) a disability associated with and held to be aggravating a service-connected disability; (3) any disability if the veteran has a permanent total disability from a service-connected disability; or (4) any disability if the veteran participating in a rehabilitation program. See 38 U.S.C.A. § 1728 (West 2014); 38 C.F.R. §§ 17.120, 17.47(i). As the Veteran has no service-connected disabilities, nor is he a participant in any VA rehabilitation program, he is ineligible for repayment from VA under 38 U.S.C.A. § 1728. The Board must therefore turn to the law regarding reimbursement for emergency treatment under the provisions of 38 U.S.C.A. § 1725. Under 38 U.S.C.A. § 1725 and its implementing regulation 38 C.F.R. § 17.1002, to be entitled to payment or reimbursement of medical expenses for treatment not previously authorized at a non-VA facility, a claimant must satisfy all of the following conditions: (a) The emergency services were provided in a hospital emergency department or a similar facility held out as providing emergency care to the public; (b) The claim for payment or reimbursement for the initial evaluation and treatment is for a condition of such a nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health (this standard would be met if there were an emergency medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) that a prudent layperson who possesses an average knowledge of health and medicine could reasonably expect the absence of immediate medical attention to result in placing the health of the individual in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part); (c) A VA or other Federal facility/provider was not feasibly available and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson (as an example, these conditions would be met by evidence establishing that a veteran was brought to a hospital in an ambulance and the ambulance personnel determined that the nearest available appropriate level of care was at a non-VA medical center); (d) At the time the emergency treatment was furnished, the veteran was enrolled in the VA health care system and had received medical services under authority of 38 U.S.C. Chapter 17 within the 24-month period preceding the furnishing of such emergency treatment; (e) The veteran is financially liable to the provider of emergency treatment for that treatment; (f) The veteran has no coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the emergency treatment (this condition cannot be met if the veteran has coverage under a health-plan contract but payment is barred because of a failure by the veteran or provider to comply with the provisions of that health-plan contract, e.g., failure to submit a bill or medical records within specified time limits, or failure to exhaust appeals of the denial of payment); (g) If the condition for which the emergency treatment was furnished was caused by an accident or work related injury, the claimant has exhausted without success all claims and remedies reasonably available to the veteran or provider against a third party for payment of such treatment and the veteran has no contractual or legal recourse against a third party that could reasonably be pursued for the purpose of extinguishing, in whole or in part, the veteran's liability to the provider; and, (h) The veteran is not eligible for reimbursement under 38 U.S.C. § 1728 for the emergency treatment provided. 38 U.S.C.A. § 1725; 38 C.F.R. § 17.1002. The services rendered took place in the emergency room at Providence Mount Carmel Hospital, a private medical hospital open to the public located across the street from the Colville VA outpatient clinic the Veteran visited for blood work that day. The Veteran's onset of chest and left arm pain upon drawing of blood at the VA clinic on May 8, 2014 was of such a nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. Indeed, the Veteran had a history of two prior heart attacks. It is therefore reasonable, based on the Veteran's prior medical history, to treat any potential heart attack symptoms as serious and requiring immediate medical attention. The Board also finds that a VA or other Federal facility/provider was not feasibly available to help treat the Veteran, and an attempt to use such a facility beforehand would not have been considered reasonable by a prudent layperson. At the time the Veteran needed emergency medical care, he was being treated in VA's outpatient clinic, which has no emergency department. It is entirely reasonable that upon a showing of heart attack symptoms, the Veteran be immediately transferred to the closest facility with an emergency department. The Providence Mount Carmel Hospital is located directly across the street from the VA outpatient clinic, and had the staffing and resources necessary to address the Veteran's emergency. At the time the Veteran received his emergency treatment, he was enrolled in the VA health care system and had received medical services under authority of 38 U.S.C. Chapter 17 within the 24-month period preceding the furnishing of emergency treatment. In fact, he was seen the day of his treatment for a blood test at the Colville outpatient clinic. With respect to billing, the record contains itemized bills from Providence Mount Carmel Hospital for the emergency care administered on May 8, 2014. These bills are addressed to the Veteran, and the Veteran is financially liable for them. Notably, the condition for which emergency treatment was furnished was not caused by an accident or work related injury, and outside of his Medicare coverage, the Veteran has no remedies reasonably available against a third party for payment for such treatment, nor does he have contractual or legal recourse against a third party that could reasonably be pursued for the purpose of extinguishing, in whole or in part, his liability to the provider. As noted above, the Veteran is ineligible for reimbursement under the provisions of 38 U.S.C.A. § 1728. The key remaining question at issue in this case is whether the Veteran is eligible to receive repayment from VA for his emergency care at a non-VA facility when he had Medicare insurance coverage that paid only a portion, but not his entire medical bill. Historically, VA has denied claims when the Veteran had any Medicare coverage- even if that coverage only paid for a portion of a patient's bills-based on language in VA's regulations specifically indicating that to be eligible for repayment, the veteran must have no coverage under a health plan contract (such as Medicare) for reimbursement or payment, in whole or in part, for emergency treatment. See 38 C.F.R. § 17.1002(f) (2015). Crucially however, in a recent April 2016 decision, the Court of Appeals for Veterans Claims (the Court) specifically examined the language of 38 C.F.R. § 17.1002(f), and found the regulation to be invalid, as being incongruous with the intention of 38 U.S.C.A. § 1725. Indeed, the Court found it clear from the plain language of 38 U.S.C.A. § 1725(b)(3)(B) that it was indeed Congress's intent to reimburse a veteran for that portion of expenses not covered by a health-plan contract. The Court determined that since the implementing regulation does not execute the language of the statute or the intent of Congress, it is "invalid and will be set aside by the Court." See Staab v. McDonald, No. 14-0957, 2016 WL 1393521 (Vet. App. Apr. 8, 2016). As discussed above, the Veteran meets all the eligibility requirements for repayment by VA of the medical expenses he incurred at Providence Mount Carmel Hospital on May 8, 2014. The Court's recent decision in Staab confirms that even though the Veteran had Medicare insurance coverage, and such coverage paid for a large portion (but not all) of his emergency care bill, such does not serve as a bar to benefits under 38 U.S.C.A. § 1725 for that portion of the bill that remained outstanding after Medicare made its payment. Accordingly, the benefit sought on appeal is granted. ORDER Payment of or reimbursement for that portion of the Veteran's private medical expenses incurred on May 8, 2014 that was not covered by the Veteran's Medicare insurance is granted under the provisions of 38 U.S.C.A. § 1725, subject to the laws and regulations controlling the award of monetary benefits. ____________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs