Citation Nr: 1805576 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 14-03 745 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Gainesville, Florida THE ISSUE Entitlement to reimbursement of non-VA medical expenses incurred at Memorial Hospital in July 2013. ATTORNEY FOR THE BOARD H. Fisher, Associate Counsel INTRODUCTION The Veteran had honorable active duty service with the United States Air Force from March 1953 to March 1957. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2013 decision from the Department of Veterans Affairs (VA) Medical Center in Gainesville, Florida. In the initial decision, the claim was denied because the Veteran had third party insurance. The Veteran filed a Notice of Disagreement in October 2013. A Statement of the Case was issued in December 2013 that denied entitlement to reimbursement due to the Veteran's third party insurance. The Veteran timely perfected a Substantive Appeal to the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks reimbursement for testing performed at Memorial Hospital, a non-VA facility, contending alternatively that the treatment was emergent in nature and that it was necessary following VA-approved surgery by a non-VA physician. Initially, when a Veteran receives treatment at a non-VA facility that does not fall under 38 U.S.C. § 1703, such as the case here, there are two statutes that allow for claimants to be paid or reimbursed for the medical expenses incurred for that treatment, specifically 38 U.S.C.A. § 1728 and 38 U.S.C.A. § 1725. Application of either statute is generally dependent on whether the Veteran has an adjudicated service-connected disability. In the instant case, because the Veteran is not service-connected for a disability, he is not eligible for payment or reimbursement of unauthorized medical expenses incurred at a non-VA facility for a service-connected disability under 38 U.S.C.A. § 1728(a). There is also no evidence or allegation he is participating in a vocational rehabilitation program under 38 U.S.C.A. Chapter 31, or that he had a total disability permanent in nature resulting from service-connected disabilities. See 38 C.F.R. § 17.120(a). Consequently, the only possible route to entitlement to unreimbursed medical expenses in this case stems from 38 U.S.C.A. § 1725. Payment or reimbursement of non-VA emergency medical services for non-service connected disorders for Veterans without full insurance coverage is available if certain conditions are met. 38 U.S.C.A. § 1725; 38 C.F.R. §§ 17.1000-17.1008 (2017). 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. §§ 17.1000-17.1008, 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 (2017). In a recent precedential decision, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 17.1002(f), which provides that a veteran must not have coverage "in whole or in part" under a health-plan contract for the emergency treatment as a condition of eligibility for VA reimbursement of unauthorized medical expenses, is invalid because it is inconsistent with the current version of 38 U.S.C.A. § 1725, the statutory section implemented by § 17.1002 of the regulations. See Staab v. McDonald, 28 Vet. App. 50 (2016). In short, the Court found that partial coverage under a health-plan contract, including under Medicare Part A and Part B, for the non-VA emergency treatment at issue, is not a bar to eligibility for VA reimbursement of any remaining uncovered balance under 38 U.S.C.A. § 1725. See id. (vacating and reversing a determination by the Board that partial Medicare coverage was a bar to section 1725 benefits, and remanding the matter for readjudication). To the extent that section 17.1002 of the regulations provides otherwise, it has been held invalid by the Court. Id. The initial determination from North Florida/South Georgia Veterans Health System, as well as the subsequent Statement of the Case, and Certification of Appeal, cites the Veteran's third party health coverage as the basis for the denial. The Statement of the Case erroneously adds that the initial decision denying reimbursement was also due to the Veteran's discharge against medical advice. No further rationale is provided. As the North Florida/South Georgia Veterans Health System relies upon a regulation that has been invalidated by the Court, remand is necessary to properly adjudicate the Veteran's claim. Remand is also necessary to determine what, if any, medical expenses can be reimbursed in this case after offset by the Veteran's third party insurance. Formal findings are required with respect to the emergent nature of the Veteran's treatment, as well as the feasibility of treatment at a VA facility. The Board notes that a discharge against medical advice does not necessarily indicate that the care provided was non-emergent. As the only consistent reason provided for the denial of reimbursement has been ruled invalid by the Court, remand is appropriate in order for thorough development and a determination in the first instance. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ should associate with the claims file any evidence, to include a copy of his Form DD-214, respecting the documentation of the Veteran's military service. 2. The AOJ should solicit from the Veteran any evidence, such as an Explanation of Benefits from his insurance company, respecting the amount of unreimbursed medical expenses that he has paid and/or still owes (after offset by his third party coverage) with respect to the episode of treatment at Memorial Hospital on July 22, 2013. 3. Ask the Veteran to identify any private treatment that he may have had pertaining to this episode of treatment and claim for unreimbursed medical expenses. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 4. Following any additional indicated development, the AOJ should review the claims file and readjudicate the Veteran's claim of entitlement to reimbursement for the cost of medical treatment provided in July 2013 by Memorial Hospital in accordance with the holding of Staab v. McDonald, 28 Vet. App. 50 (2016). The AOJ should consider the January 2014 statement by the Veteran's operating physician regarding the necessity of this testing to rule out post-operative complications. The AOJ must make findings with respect to each element of eligibility for reimbursement. If the benefit sought on appeal remains denied, the Veteran should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This claim 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 2014). _________________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2017).