Citation Nr: 18153912
Decision Date: 11/28/18	Archive Date: 11/28/18

DOCKET NO. 16-24 494A
DATE:	November 28, 2018
ORDER
Entitlement to payment or reimbursement for the cost of unauthorized medical treatment received while admitted at University of Pittsburgh Medical Center (UPMC) East from June 5 to June 8, 2015, is denied.
REMANDED
Entitlement to payment or reimbursement for the cost of unauthorized medical treatment received in the emergency department of UPMC East on June 5, 2016, is remanded.
FINDING OF FACT
The amount in dispute, $1,260.00, incurred while admitted at UPMC East from June 5 to June 8, 2015, represents a Medicare deductible, which VA is prohibited from paying.
CONCLUSION OF LAW
The criteria for establishing entitlement payment or reimbursement for the cost of unauthorized medical treatment received while admitted at UPMC East from June 5 to June 8, 2015, have not been met.  38 U.S.C. §§ 1703, 1725, 1728, 5107; 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120, 17.121, 17.1002.
REASONS AND BASES FOR FINDING AND CONCLUSION
It appears that the Veteran served on active duty from June 1972 to July 1973; however, the Board is unable to verify the dates of the Veteran’s military service based on the evidence provided in the claims file.
1. Reimbursement for unauthorized medical treatment received while admitted at UPMC East from June 5 to June 8, 2015.
The Veteran seeks reimbursement for medical expenses incurred from June 5 to June 8, 2015, at UPMC East, a non-VA facility, contending that when he was seen in the emergency department, before being admitted for further treatment, VA approved the admission.  He also asserts that he does not have healthcare insurance other than VA.  See the December 2015 notice of disagreement.   
Payment or reimbursement for emergency treatment may be made pursuant to 38 U.S.C. § 1725.  To be eligible for reimbursement under this authority, the Veteran has to 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;
(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;
(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;
(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
(h) The Veteran is not eligible for reimbursement under 38 U.S.C. § 1728 for the emergency treatment provided.  (38 U.S.C. § 1728 authorizes VA payment or reimbursement for emergency treatment to a limited group of veterans, primarily those who receive emergency treatment for a service-connected disability.)
In Staab v. McDonald, 28 Vet. App. 50 (2016), the United States Court of Appeals for Veterans Claims (Court) held that the previous version of 38 C.F.R. § 17.1002(f), which provided 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, was invalid because it was inconsistent with the current version of 38 U.S.C. § 1725, the statutory section implemented by § 17.1002 of the regulations.  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, was not a bar to eligibility for VA reimbursement of any remaining uncovered balance under 38 U.S.C. § 1725.  See id.  However, 38 U.S.C. § 1725(c)(4)(D) limits reimbursement for copayments or similar payments, and such payment limitations were not set aside by the Court in Staab.
When applying the holding of Staab to the case at hand, it is true that, assuming the other portions of the regulation are met, the Veteran would be able to obtain reimbursement from the VA for the portion of the medical expenses that he incurred but was not paid in full by Medicare.
However, 38 U.S.C. § 1725(c)(4)(D) provides for payment limitations, and those payment limitations were not set aside by the Court in Staab.  Specifically, 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 a veteran owes the third party.
In this case, the record reflects that Medicare Part A covered the expenses at UPMC East from June 5 to June 8, 2015, except for the Veteran’s deductible for the year of $1,260.00.  VA is barred by law and cannot reimburse the Veteran for that amount pursuant to 38 C.F.R. § 17.1005(f).  As such, the claim for reimbursement for medical expenses incurred from June 5 to June 8, 2015, for treatment while admitted at UPMC East, must be denied.
REASONS FOR REMAND
1. Reimbursement for unauthorized medical treatment received in the emergency department of UPMC East on June 5, 2016, is remanded.
As noted above, the Veteran contends that VA was notified when he was seen in the emergency department and approved his care at UPMC East.  
The Veteran is correct and the claims file indicates that VA did approve the emergency room expenses incurred on June 5, 2015.  However, a February 2016 Statement of the Case (SOC) indicates that reimbursement for “ancillary charges” were denied due to “transfer refusal.”
It is unclear to the Board what charges were denied and the reason(s) for denial.  The claims file does not specify what charges were denied, nor is it clear whether the Veteran refused a transfer to a VA facility.  As such, remand is necessary for clarification and further development.
The matter is REMANDED for the following action:
1. Associate with the claims file any evidence regarding the documentation of the Veteran’s military service, to include a copy of the Veteran’s Form DD-214.
2. Associate with the claims file all procedural and/or administrative VA records that explain the “ancillary charges” by the emergency department that were denied.
3. Solicit from the Veteran any evidence respecting the amount of unreimbursed medical expenses that he has paid and/or still owes (after offset by his Medicare coverage) with respect to the episode of treatment in the emergency department of UPMC East on June 5, 2015.
4. If necessary after completing the above, associate with the claims file any records from UPMC East and/or VA that note any communication regarding transferring the Veteran from UPMC East to a VA facility.





5. After completing the above, and any additional development deemed necessary, readjudicate the claim.  If any benefit sought on appeal remains denied, then a fully responsive supplemental statement of the case should be furnished to the Veteran, and he should be afforded a reasonable opportunity for response.

 
H. SEESEL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	N. Nelson, Counsel