Citation Nr: 1714432 Decision Date: 05/02/17 Archive Date: 05/11/17 DOCKET NO. 13-11 335 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Bay Pines, Florida THE ISSUES 1. Entitlement to payment or reimbursement of unauthorized medical expenses incurred as a result of treatment at Naples Community Hospital, Naples, Florida on July 23, 2012. 2. Entitlement to payment or reimbursement of unauthorized medical expenses incurred as a result of treatment at Naples Community Hospital, Naples, Florida on August 11, 2012. REPRESENTATION Appellant represented by: Christopher Loiacono, Agent ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served on active duty from December 1979 to December 1983. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 denial of a claim for payment or reimbursement of expenses incurred at a private facility by the Department of Veterans Affairs (VA) Medical Center in Bay Pines, Florida. The Board notes that on his March 2013 VA Form 9, the Veteran indicated his desire to have a hearing at a local VA office before a member of the Board. The request was later withdrawn via a statement by the Veteran's representative, received by VA in June 2016. As such, the Veteran's request for a hearing is considered withdrawn. 38 C.F.R. § 20.702(e) (2016). The instant matters were previously before the Board in August 2016, at which time they were remanded for further development. Upon completion of the requested development, a supplement statement of the case (SSOC) continuing the denial of the Veteran's claims was issued in September 2016. The matters were thereafter returned to the Board. Lastly, the Board notes that a review of the Veteran's VBMS file shows that the Veteran timely filed a notice of disagreement (NOD) with an October 2013 rating decision. Receipt of the Veteran's NOD was recently acknowledged by the RO in August 2016. Accordingly, as the post-decision review process has begun in an attempt to resolve the Veteran's disagreement with the October 2013 rating decision, the matters decided therein are not yet ripe for appellate review. FINDINGS OF FACT 1. The Veteran received emergency medical treatment on July 23 and August 11, 2012, at Naples Community Hospital, a private hospital in Naples, Florida, related to his rapid and irregular heartbeat. 2. The services provided by Naples Community Hospital were not authorized in advance by VA, but the Veteran was previously seen at Naples Community Hospital and it was recommended by that facility that he return to the emergency department if his symptoms returned, persisted, or worsened, the Veteran be seen at the nearest emergency room based on the description of her symptoms. 3. The Veteran's symptoms at the time he presented at Naples Community Hospital on July 23, and August 11, 2012, were such that a prudent layperson would have reasonably viewed the visit as an emergency or thought that a delay in seeking immediate attention would have been hazardous to life or health. 4. VA treatment facilities were not reasonably available for treatment of the symptoms. 5. The Veteran is ineligible for reimbursement under 38 U.S.C.A. § 1728 (West 2014). 5. The Veteran met all remaining criteria for reimbursement under 38 U.S.C.A. § 1725 (West 2014). CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the appellant's favor, the criteria for payment or reimbursement of unauthorized medical expenses incurred during emergency room treatment at Naples Community Hospital on July 23, 2012, have been met. 38 U.S.C.A. §§ 1725, 5107 (West 2014); 38 C.F.R. §§ 17.1001, 17.1002, 17.1005 (2016); Staab v. McDonald, 28 Vet. App. 50 (2016). 2. Resolving reasonable doubt in the appellant's favor, the criteria for payment or reimbursement of unauthorized medical expenses incurred during emergency room treatment at Naples Community Hospital on August 11, 2012, have been met. 38 U.S.C.A. §§ 1725, 5107 (West 2014); 38 C.F.R. §§ 17.1001, 17.1002, 17.1005 (2016); Staab v. McDonald, 28 Vet. App. 50 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A review of the evidence relevant to the claims currently before the Board shows that on July 23 and August 11, 2012, the Veteran presented to the emergency department of Naples Community Hospital, a non-VA facility, with heart palpitations. The issue is entitlement to payment or reimbursement of medical expenses incurred during these visits. Initially, the Board notes that when VA facilities or other government facilities are not capable of furnishing economical hospital care or medical services because of geographic inaccessibility or are not capable of furnishing care or services required, VA may authorize or contract with non-VA facilities for care. 38 U.S.C.A. § 1703 (a) (West 2014); 38 C.F.R. § 17.52 (a) (2016). However, the Veteran has never contended, and the evidence does not demonstrate, that he received prior VA written authorization for his private emergency room treatment on July 23 or August 11, 2012. Therefore, 38 U.S.C.A. § 1703 (a) does not apply in this case. As provided for in 38 U.S.C.A. § 1725 and 38 U.S.C.A. § 1728, when a veteran receives treatment at a non-VA facility without prior authorization, VA must reimburse the veteran for the reasonable value of emergency treatment furnished in a non-VA facility, or in lieu of that, make payment directly to a hospital or other health care provider that furnished such treatment on behalf of the veteran under the authority so long as certain statutory and regulatory requirements are met. At the outset, the Board finds that eligibility under § 1728, which applies primarily to emergency treatment for a service-connected disability, is neither claimed nor apparent from the record as the Veteran was not treated for a service-connected disability. Indeed, the Veteran presently has no service-connected disabilities, nor was any disability service-connected at the time that he received emergency treatment in July and August 2012. Thus, the question at issue is the Veteran's right to payment of reimbursement of unauthorized medical expenses under the provisions of 38 U.S.C.A. § 1725. To be eligible for payment by VA for services rendered for a nonservice-connected condition in a non-VA facility under 38 U.S.C.A. § 1725 and 38 C.F.R. §§ 17.1000-1008, the treatment must satisfy all of the following conditions: (a) The emergency services were provided in a hospital emergency department or a similar facility providing emergency care; (b) A prudent layperson would have reasonably expected that delay in seeking immediate medical attention for the initial evaluation and treatment would have been hazardous to life or health; (c) A VA or other Federal facility was not feasibly available and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson; (d) The Veteran was enrolled in the VA health care system at the time the emergency treatment was furnished and had received medical services under 38 U.S.C. Chapter 17 within two years before the non-VA emergency treatment; (e) The Veteran is financially liable to the non-VA provider of the emergency treatment; (f) The Veteran has no health insurance coverage for payment or reimbursement for the emergency treatment; (g) The Veteran has unsuccessfully exhausted claims reasonably available against a third party in the case of an accident or work-related injury; and (h) The Veteran is not eligible for reimbursement under 38 U.S.C.A § 1728, which applies primarily to emergency treatment for a service-connected disability. See 38 C.F.R. § 17.1002 (2016). At the outset, the Board notes that a review of the relevant evidence demonstrates that the Veteran has already met many of the substantive and administrative criteria for payment or reimbursement of nonservice-connected medical care listed under 38 U.S.C.A. § 1725 and 38 C.F.R. § 17.1002. Specifically, there is no question that the services provided on July 23, and August 11, 2012, were provided in a hospital emergency department; that the Veteran is financially liable to the private provider for treatment; that the Veteran was enrolled in the VA health care system and had received medical services under authority of 38 U.S.C.A. Chapter 17 within the 24-month period preceding the furnishing of such emergency treatment; that the nonservice-connected cardiovascular condition was not caused by an accident or work-related injury for which the Veteran would have contractural or legal recourse against a third party such as state-mandated automobile reparations insurance; and that the Veteran is not eligible for reimbursement under 38 U.S.C.A. § 1728. See 38 C.F.R. §§ 17.1002(a), (d), (e), (g), (h). Regarding whether the treatment rendered on July 23 and August 11, 2012, was for an emergency medical condition that a prudent layperson would have sought emergency treatment for, the Board notes that treatment records contained in the Veteran's VBMS file show several instances of emergency room treatment prior to July 23, 2012, during which times the Veteran had presented with complaints of a rapid heartbeat. On July 7, 2012, he was admitted to the hospital for a period of two days. Upon discharge, the Veteran was instructed to return to the emergency room if he experienced similar symptoms. When discharged on July 23, 2012, the Veteran was similarly instructed to return to the emergency department if symptoms persisted or worsened. In the instant case, given that a medical professional recommended presentation to the closest emergency room if the Veteran's heart symptoms returned, persisted, or worsened, the Board concludes that at the time the Veteran sought treatment at the private facility on July 23 and August 11, 2012, a prudent layperson would reasonably expect that delay in seeking treatment would be hazardous to health or life. With respect to the issue of whether a VA facility was feasibly available for care, the Board finds that a VA facility was not feasible in such an emergent circumstance. The Board takes judicial notice of the fact that VA medical centers (VAMCs) in Miami, West Palm Beach, and Bay Pines, Florida, which appear to the be the closest VA emergency departments to Naples, Florida, are significantly farther from the Veteran's residence than Naples Community Hospital. See Smith v. Derwinski, 1 Vet.App. 235, 238 (1991) ("Courts may take judicial notice of facts not subject to reasonable dispute" (citing FED. R. EVID. 201 (b))). Indeed, it would appear that the closest VA medical center (VAMC) (i.e., not a community based outpatient clinic) to the Veteran's then-residence in Naples, Florida, is more than 100 miles from the Veteran's then-residence whereas Naples Community Hospital is less than 20 miles. When viewed in totality with the nature of the Veteran's medical condition that the Veteran was told to seek emergency treatment for and the more than 100 mile drive to the closest available VA medical facility, the Board finds that a VA facility could not be considered a reasonable option for the Veteran's medical needs. Accordingly, the Board finds that the Veteran has met the criteria of 38 C.F.R. § 17.1002(b) and (c). The only remaining issue, and the central issue, is whether the Veteran is eligible to receive payment or reimbursement from VA for his emergency care at a non-VA facility. In this case, the AOJ denied the Veteran's claim upon finding that the Veteran had other health care coverage. Specifically, the AOJ determined that Aetna Health Insurance was the primary payer for emergency service provided on July 23, and August 11, 2012. The record does suggest that the Veteran indeed had a health care policy through Aetna Insurance Company for the period from May 19, 2010, through September 5, 2012. Notably, however, VA treatment records list the Veteran health policy as "Aetna (SRC)." According to Aetna's website, "SRC" is the "Strategic Resource Company," which is "an Aetna company [that] offers limited medical plans and optional coverages for . . . hourly, part time and seasonal workers." http://www.aetna.com/plans-services-health-insurance/detail/document-library/AetnaAffordableHealthChoices.pdf. The exact nature of the Veteran's coverage under this plan in unknown, but it would appear that any health care the Veteran may have had covered only a portion, if any amount, of his hospital bills for services provided on July 23 and August 11, 2012. The Board notes that, historically, VA has denied claims when a veteran had any health care 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 or reimbursement, the veteran must not have any coverage under a health plan contract for reimbursement or payment, in whole or in part, for emergency treatment. See 38 C.F.R. § 17.1002 (f) (2016). Thus, historically, even if a veteran's health care plan covered only a small portion of his unauthorized medical expenses, the veteran was barred from payment or reimbursement for VA for the remaining medical expenses. Crucially however, in an April 2016 decision, the United States Court of Appeals for Veterans Claims (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 the statute-38 U.S.C.A. § 1725. Staab v. McDonald, 28 Vet. App. 50 (2016). The Court found it clear from the plain language of 38 U.S.C.A. § 1725(b)(3)(B) that it was Congress's intent to reimburse a veteran for that portion of expenses not covered by a health-plan contract when the amount covered by the third party was less than total. The Court determined that since the implementing regulation, 38 C.F.R. § 17.1002(f), does not execute the language of the statute or the intent of Congress, it is "invalid and will be set aside by the Court." Id. at 55. The Court noted that 38 C.F.R. § 17.1002(f) was "wholly inconsistent with" the plain meaning of § 1725 and Congressional intent that veterans be reimbursed for portion of their emergency medical costs that was not covered by a third party insurer and for which they were otherwise personally liable. Id. Specifically, an applicable in the present case, 38 U.S.C.A. § 1725 (b)(3)(B) and (C), state that a veteran is personally liable for emergency treatment if the veteran has no entitlement to care or services under a health-plan contract or has no other contractual or legal recourse against a third party that would, in whole, extinguish such liability to the provider. Further, Congress amended 38 U.S.C.A. § 1725 in February 2010, striking 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 (e.g. Medicare or a private health plan) 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. Importantly, Congress instructed that in any case in which a third party is financially responsible for only part for the veteran's emergency treatment expenses, the Secretary shall be the secondary payer. 38 U.S.C.A. § 1725 (c)(4)(B). As discussed above, the Veteran meets all the eligibility requirements for repayment by VA of the medical expenses he incurred as a result of treatment at Naples Community Hospital, Naples, Florida on July 23 and August 11, 2012. The Court's recent decision in Staab confirms that even though the AOJ determined that the Veteran had insurance coverage, he is not barred from further benefits under 38 U.S.C.A. § 1725 for that portion of the bill that remained outstanding after his private health care provider made its payment. Although VA has appealed the Court's decision to the United States Court of Appeals for the Federal Circuit, the Federal Circuit has not yet issued a decision and the Court's decision in Staab thus remains binding on the Board. 38 U.S.C.A. §§ 7252(a), 7261(a)(1) (West 2014) (giving the Court exclusive jurisdiction to review Board decisions and to "decide all relevant questions of law, interpret constitutional, statutory, and regulatory provisions, and determine the meaning or applicability of the terms of an action of the Secretary"). See also Tobler v. Derwinski, 2 Vet. App. 8, 14 (1991) ("a decision of this Court, unless or until overturned by this Court en banc, the United States Court of Appeals for the Federal Circuit, or the Supreme Court, is a decision of the Court on the date it is issued; any rulings, interpretations, or conclusions of law contained in such a decision are authoritative and binding as of the date the decision is issued"); Staab v. Shulkin, No. 14-0957 (Vet. App. Feb. 21, 2017) (Stamp Order denying motion to stay the precedential effect of Staab). Thus, the law at this time provides that partial coverage by health insurance no longer renders a claimant ineligible for reimbursement under 38 U.S.C.A. § 1725. Accordingly, the Board finds that payment or reimbursement of unauthorized medical expenses incurred as a result of treatment at Naples Community Hospital, Naples, Florida on July 23 and August 11, 2012, is warranted. 38 U.S.C.A. §§ 1725, 5107 (West 2014). In reaching the above determination, the Board acknowledges that in order for the Veteran to ultimately be entitled to reimbursement, he would have to be liable to the hospital for an amount over and above that which was covered by his health insurance plan. As indicated above, the evidence before the Board reflects that the Veteran is liable for such an amount, but the precise amount cannot be determined based on the evidence in the claim file at this time. Thus, the amount of reimbursement to which the Veteran is entitled will have to be determined by the agency of original jurisdiction (AOJ) in implementing the grant of benefits awarded in this decision. In this regard, the Board notes that 38 U.S.C.A. § 1725(c)(4)(D) does provide for certain payment limitations by VA, and those payment limitations were not set aside by the Court in Staab. 38 U.S.C. § 1725 (c)(4)(D) provides that reimbursement by VA will not be made "for any copayment or similar payment that the veteran owes the third party or for which the veteran is responsible under a health-plan contract." In addition, the related implementing regulation, 38 C.F.R. § 17.1005(f), states that "VA will not reimburse a claimant under this section for any deductible, copayment, or similar payment that the veteran owes the third party." Thus, to the extent the Veteran in the present case owed a copayment or deductible to his third party insurance plan (i.e., to Aetna/SRC), VA is barred by law and cannot reimburse the Veteran for these particular amounts owed. Thus, in determining the liability of the Veteran that still exists, VA is prohibited from considering the copayment or deductible payments for which the Veteran is responsible under his health-plan contract, for services provided at Naples Community Hospital on July 23 and August 11, 2012. ORDER Payment or reimbursement of unauthorized medical expenses incurred as a result of treatment at Naples Community Hospital on July 23, 2012, is granted, in an amount to be determined by the AOJ, subject to controlling regulations governing the payment of monetary awards. Payment or reimbursement of unauthorized medical expenses incurred as a result of treatment at Naples Community Hospital on August 11, 2012, is granted, in an amount to be determined by the AOJ, subject to controlling regulations governing the payment of monetary awards. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs