Citation Nr: 18146430 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 16-35 302A DATE: October 31, 2018 REMANDED Entitlement to payment or reimbursement for the cost of unauthorized medical treatment provided from January 6 to January 10, 2014, at Ministry Sacred Heart Hospital is remanded. Entitlement to payment or reimbursement for the cost of unauthorized medical treatment provided on February 14, 2014, at Howard Young Medical Center is remanded. REASONS FOR REMAND The Veteran served on active duty in the Air Force from February 1963 to May 1967. His decorations include a Vietnam Service Medal and a Republic of Vietnam Campaign Medal. In a September 2015 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge. A hearing was subsequently scheduled for May 2017; however, in April 2017, the Veteran withdrew his hearing request. See 38 C.F.R. § 20.704(d). 1. Entitlement to payment or reimbursement for unauthorized medical treatment is remanded. The Veteran contends that payment or reimbursement is warranted for medical expenses incurred at Ministry Sacred Heart Hospital from January 6 to January 10, 2014, and at Howard Young Medical Center on February 14, 2014. Medical records from Ministry Sacred Heart Hospital show that the Veteran was seen in the hospital’s emergency room on January 6, 2014, reporting a progressively worsening left lower quadrant pain over the last 3-4 days. He was found to have diverticulosis and admitted until January 10, 2014. The treatment records indicate that VA was contacted about the possibility of transfer to the VA system, but a bed was unavailable and the recommendation was to admit the Veteran to the local hospital. Medical records from Howard Young Medical Center shows that the Veteran was seen in the hospital’s emergency room on February 14, 2014, reporting symptoms of abdominal pain, diarrhea, fever, and chills. The claims file does not contain complete treatment records for this episode of care, but it appears that the Veteran was discharged the same day. Payment or reimbursement for the treatment received at Ministry Sacred Heart Hospital and Howard Young Medical Center were both subsequently denied on the basis that the services provided were for a non-service connected condition and the Veteran had third party insurance coverage. Specifically, the Veteran was noted to have Medicare Parts A and B, and as such, was not eligible for reimbursement by VA. It is unclear to the Board whether the Veteran is seeking reimbursement for Medicare deductibles or co-payments, or whether his Medicare insurance did not fully cover his medical care at Ministry Sacred Heart Hospital and/or Howard Young Medical Center and he is seeking reimbursement for these uncovered expenses. The United States Court of Appeals for Veterans Claims has held that 38 C.F.R. § 17.1002(f), which previously provided that a veteran must not have coverage “in whole or in part” under a health-plan contract as a condition of eligibility for VA reimbursement of unauthorized medical expenses was invalid, and that a Veteran with only partial coverage under a health care plan, including Medicare and Medicaid, could seek payment or reimbursement for the expenses for which he had personal liability. Staab v. McDonald, 28 Vet. App. 50 (2016). In short, partial coverage under a health-plan contract, including under Medicare Parts A and 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. § 1725. If the Veteran has only partial coverage by Medicare for his treatment at Ministry Sacred Heart Hospital and/or Howard Young Medical Center, he is not necessarily ineligible for reimbursement of any remaining balance. However, VA is not authorized to pay Medicare deductibles or co-payments. See 38 U.S.C. § 1725(c)(4)(D). The issues are therefore remanded to provide the Veteran with adequate notice regarding the requirements for reimbursement under 38 U.S.C. § 1725 when a veteran has separate insurance, and to afford him an opportunity to provide information regarding whether his insurance fully or partially covers the expenses incurred. In addition, as noted above, remand is necessary to associate treatment records from Howard Young Medical Center related to the February 14, 2014 treatment. The claims file currently contains only a single page of treatment notes. Finally, the record does not currently contain VA treatment records documenting communication with Ministry Sacred Heart Hospital and/or Howard Young Medical Center. The matters are REMANDED for the following action: 1. Send to the Veteran notice explaining that medical reimbursement is not allowed under 38 U.S.C. § 1725 when a veteran has separate insurance which extinguishes personal liability for a procedure. Accordingly, request that the Veteran provide evidence relating to his Medicare coverage, including evidence demonstrating that this other insurance did not fully cover the cost of his January and February 2014 medical treatment at Ministry Sacred Heart Hospital and Howard Young Medical Center, such as medical bills, receipts, or insurance statements. As noted above, VA is not authorized to pay Medicare deductibles or co-payments. 2. If the Veteran is found to have personal liability, at least in part, for expenses incurred at Howard Young Medical Center, associate with the claims file all relevant treatment records from the Veteran’s treatment at Howard Young Medical Center on February 14, 2014. 3. If the Veteran is found to have personal liability, at least in part, for expenses incurred at Ministry Sacred Heart Hospital and/or Howard Young Medical Center, locate all procedural and administrative VA records associated with the Veteran’s claims, to include any records of phone conversations or other communication with Ministry Sacred Heart Hospital and/or Howard Young Medical Center, and associate such records with the claims file. If any records sought are not obtained, a written statement to that effect should be incorporated into the record. 4. If the Veteran is found to have personal liability, at least in part, for expenses incurred at Ministry Sacred Heart Hospital and/or Howard Young Medical Center, complete any other development deemed necessary to determine whether he is eligible for reimbursement under 38 U.S.C. § 1725. If the claims remain denied, then a fully responsive supplemental statement of the case should be furnished to the Veteran and his representative, and they should be afforded a reasonable opportunity for response. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Nelson, Counsel