Citation Nr: 18157898 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 17-01 740 DATE: December 13, 2018 ORDER Entitlement to payment or reimbursement of unauthorized medical expenses and ambulance transportation services incurred during a non-VA hospitalization at Tallahassee Memorial Hospital on April 19, 2016, is GRANTED (with the exception of any copayment or deductible or coinsurance owed by the Veteran, and with the exception of any amount already partially covered by his health insurance plan - Medicare Part A). FINDINGS OF FACT 1. On April 19, 2016, the Veteran was transported by ambulance and hospitalized at Tallahassee Memorial Hospital for a nonservice-connected disability – acute dehydration. The Veteran has partial health insurance coverage under Medicare Part A. 2. It is undisputed his private hospitalization on April 19, 2016 was rendered in a “medical emergency” under the prudent layperson standard; it is undisputed VA facilities were not feasibly available, as ambulance personnel determined that the nearest available appropriate level of care was a private hospital facility; and it is undisputed there is no stability issue, as the Veteran was only hospitalized for a little over two hours. 3. The original claim for entitlement to payment or reimbursement from the private hospital and from an associated ambulance provider was filed in a timely fashion on May 5, 2016, within 90 days of the April 19, 2016 date of discharge from Tallahassee Memorial Hospital. But this claim was incomplete. In any event, there is no indication in the claims file that VA contacted the claimant in writing to request that the claimant submit whatever necessary information was missing from the May 5, 2016 claim for reimbursement. Thus, the time period for the claimant to submit any additional information was tolled. CONCLUSION OF LAW The criteria are met for payment or reimbursement of unauthorized medical expenses and ambulance transportation services incurred during a non-VA hospitalization at Tallahassee Memorial Hospital on April 19, 2016. 38 U.S.C. § 1725, 5107 (2012); 38 C.F.R. §§ 17.1001, 17.1002, 17.1004 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service in the U.S. Navy from July 1966 to June 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 decision by the Department of Veterans Affairs (VA) North Georgia / South Florida Veterans Health System in Gainesville, Florida. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). This appeal was processed using both a paper-based claims file and an electronic Veterans Benefits Management System (VBMS). VA’s Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA’s duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In Beverly v. Nicholson, 19 Vet. App. 394, 403-04 (2005), although not explicitly stated, the U.S. Court of Appeals for Veterans Claims (Court) implied the VCAA is applicable to a Chapter 17 claim, but then held that the failure to comply with the VCAA notice requirements in that case constituted non-prejudicial error. To the extent the VCAA is applicable to the instant medical expense reimbursement claim, the Board has considered its provisions. However, in the decision below, the Board has granted the Veteran’s claim for payment or reimbursement of unauthorized medical expenses and ambulance transportation services. Therefore, the benefits sought on appeal have been granted in full. Accordingly, regardless of whether the VCAA notice and assistance requirements have been met with regard to these issues, no harm or prejudice to the Veteran has resulted. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. Medical Expense Reimbursement On Tuesday, April 19, 2016, at around 6:35pm, the Veteran was transported by ambulance to the Tallahassee Memorial Hospital in Tallahassee, Florida. He had been umpiring a baseball game, but began to feel weak and tired. When ambulance paramedics arrived, they found the Veteran sitting in a slumped over manner in a chair near the baseball field. He appeared “abnormally weak.” He was treated for generalized weakness, fatigue, dizziness, lightheadedness, and nausea. He lacked stamina and strength. The onset of these symptoms was just prior to arrival of the ambulance, and the duration of the symptoms was constant. He was transported by ambulance to the emergency department of Tallahassee Memorial Hospital. At the private hospital, some of his laboratory findings were abnormal. The final diagnosis was “acute dehydration.” He was treated with IV hydration. He improved. He remained hospitalized for a little over two hours from 7:44pm to 9:52pm. The Veteran is not service-connected for any condition. Thus, there is no dispute that his private hospitalization was for a nonservice-connected disorder. At the time of the private hospitalization, the Veteran was 67 years of age. At the time of the private hospitalization, the Veteran was enrolled in Medicare Part A. That was his only health insurance. His ambulance transportation expenses totaled $1,181.00. His private hospital expenses totaled $4,914.91. It is unclear what portion of his medical expenses his Medicare Part A covered for this incident, if any. In the instant case, because the treatment in question was rendered for a nonservice-connected disability, the Veteran 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. § 1728(a). In fact, he has no disabilities service-connected by VA. There is also no evidence or allegation he is participating in a vocational rehabilitation program under 38 U.S.C. Chapter 31, or that he had a total disability permanent in nature resulting from his service-connected disabilities, or that his nonservice-connected problems were associated with and aggravating any service-connected disabilities, which in certain instances might have qualified him under 38 U.S.C. § 1728. See also 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. § 1725 – the Veterans Millennium Health Care and Benefits Act. Pursuant to the Veterans Millennium Health Care and Benefits Act, payment or reimbursement of non-VA emergency medical services for nonservice-connected disorders for Veterans without insurance is available if certain conditions are met. 38 U.S.C. § 1725 (2012); 38 C.F.R. §§ 17.1000-17.1008 (2017). The Veteran has requested reimbursement for his unauthorized medical expenses and ambulance transportation services for his private hospitalization at Tallahassee Memorial Hospital on April 19, 2016. It is undisputed his private hospitalization was rendered in a “medical emergency” 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. It is also undisputed the nearest VA facilities were not feasibly available on April 19, 2016, as ambulance personnel determined that the nearest available appropriate level of care was a private hospital facility. It is also undisputed there is no stability issue, as the Veteran was only hospitalized for a little over two hours. In summary, it appears the Veteran has met nearly all of the substantive and administrative conditions for payment or reimbursement of nonservice-connected medical care listed under 38 C.F.R. § 17.1002(a)-(h) (2017). However, in the August 2016 VA administrative decision on appeal (no copy present in the claims file) and in the November 2016 Statement of the Case (SOC), the VAMC denied the Veteran’s unauthorized medical expense and ambulance transportation services claim. There was one basis for the denial - the claim was not timely filed. The VAMC determined that the private provider did not submit its claim for payment or reimbursement within 90 days of the date the Veteran was discharged from the private facility. That is, the VAMC determined that the claim from the private facility was received on July 29, 2016, which was beyond 90 days after the April 19, 2016 private hospitalization. See 38 C.F.R. § 17.1004(d). In particular, the claim was received approximately 100 days after discharge from the private facility – so it was 10 days late. Upon review of the evidence, the Board finds that the requirements for payment or reimbursement of unauthorized medical expenses and ambulance transportation services incurred during a non-VA hospitalization at Tallahassee Memorial Hospital on April 19, 2016, under 38 U.S.C. § 1725, are met. The VAMC’s determination is reversed and the appeal is granted. With regard to the timeliness of the medical expenses claim, when examining the provisions of 38 C.F.R. § 17.1004(d), the Veteran’s claim (through Tallahassee Memorial Hospital and the ambulance services), was in fact timely. The relevant VA regulations on timeliness in this case are as follows: To receive payment or reimbursement for emergency treatment under the Millennium Bill Act, a claimant must submit to the VAMC of jurisdiction a completed standard billing form (such as a UB-92 or HCFA 1500). A claimant for payment or reimbursement under 38 U.S.C. 1725 must be the entity that furnished the treatment, the veteran who paid for the treatment, or the person or organization that paid for such treatment on behalf of the veteran. And under 38 U.S.C. 1725, no specific form is required for a claimant (or duly authorized representative) to claim payment or reimbursement for emergency transportation charges. See 38 C.F.R. § 17.1004(a)-(c). With regard to the timeliness of the claim, to receive payment or reimbursement for emergency services, a claimant must file a claim within 90 days after the latest of the following: (1) The date that the Veteran was discharged from the facility that furnished the emergency treatment; (2) The date of death, but only if the death occurred during transportation to a facility for emergency treatment or if the death occurred during the stay in the facility that included the provision of the emergency treatment; or (3) The date the Veteran finally exhausted, without success, action to obtain payment or reimbursement for the treatment from a third party. 38 C.F.R. § 17.1004(d) (2017) (emphasis added). As discussed above, the receipt date of the medical expense claim from Tallahassee Memorial Hospital was July 29, 2016 – approximately 100 days after the April 19, 2016 date of discharge from Tallahassee Memorial Hospital. Thus, upon initial review, this claim appears to be untimely, as it was submitted beyond 90 days after the private hospitalization. However, another section of the pertinent regulation, 38 C.F.R. § 17.1004(e), provides that if, after reviewing the claim, the decisionmaker determines that additional information is needed to make a determination regarding the claim, such official will contact the claimant in writing and request additional information. The additional information must be submitted to the decisionmaker within 30 days of receipt of the request or the claim will be treated as abandoned, except that if the claimant within the 30-day period requests in writing additional time, the time period for submission of the information may be extended as reasonably necessary for the requested information to be obtained. The Board finds that 38 C.F.R. § 17.1004(e) is the controlling provision here. But in its adjudication of the issue on appeal, the VAMC failed to mention it or apply it. This provision is relevant because in the November 2016 SOC, the VAMC noted in the “summary of evidence” section that the original insurance claims were actually received by the VAMC at a much earlier date - on May 5, 2016. This is only 16 days after the Veteran’s discharge from Tallahassee Memorial Hospital. Thus, it was filed in a timely manner. See 38 C.F.R. § 17.1004(d)(1). (The Board observes copies of the May 5, 2016 claims are missing from the claims file, for reasons unknown to the Board). In any event, the VAMC also noted that the May 5, 2016 claims did not include the necessary medical documentation from Tallahassee Memorial Hospital, in order to properly adjudicate the medical expense reimbursement claim. But there is no indication in the claims file that the VAMC contacted the Veteran or the private hospital or ambulance service in writing to request the additional information missing from the May 5, 2016 claims for reimbursement. This is critical in that 38 C.F.R. § 17.1004(e) provides that if, after reviewing the claim, the decisionmaker determines that additional information is needed to make a determination regarding the claim, such official will contact the claimant in writing and request additional information. Here, there is no evidence the VAMC notified or advised the claimant to submit additional information to complete the claim. In a roughly analogous situation, in Cook v. Principi, 318 F.3d 1334, 1337 (Fed. Cir. 2002) (en banc), the Federal Circuit held the period of time for a claimant to act after an RO decision may be “tolled,” leaving the case in a nonfinal status when the VA has failed to notify a claimant of the denial of a claim. More importantly, 38 C.F.R. § 17.1004(e) also provides that “the time period for submission of the information may be extended as reasonably necessary for the requested information to be obtained.” Here, after the initial incomplete claim was filed by the claimants on May 5, 2016, it appears the time-period to submit additional information was extended, such that the proper claim with all necessary medical documentation was eventually submitted by the claimants on July 29, 2016. In short, the medical expenses reimbursement claim was filed in a timely manner. 38 C.F.R. § 17.1004(d)(1), (e). The claim can no longer be denied on the basis of timeliness. Since the Veteran meets all other substantive and administrative criteria for payment or reimbursement, the Board finds that payment or reimbursement of unauthorized medical expenses and ambulance transportation services incurred during a non-VA hospitalization at Tallahassee Memorial Hospital on April 19, 2016, is warranted. 38 U.S.C. §§ 1725, 5107. However, on a side note, 38 U.S.C. § 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 v. McDonald, 28 Vet. App. 50, 55 (2016). In this vein, 38 U.S.C. § 1725(c)(4)(D) states 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 amended implementing regulation, 38 C.F.R. § 17.1005(a)(5), states that “VA will not reimburse a veteran under this section for any copayment, deductible, coinsurance, or similar payment that the veteran owes the third party or is obligated to pay under a health-plan contract.” See 83 Fed. Reg. 974 (Jan. 9, 2018) (to be codified at 38 C.F.R. pt. 17). Thus, to the extent the Veteran in the present case owed a copayment or deductible or coinsurance to his health care insurance plan (Medicare Part A), VA is barred by law and cannot reimburse the Veteran for these particular amounts owed. Stated another way, VA is prohibited from paying the Veteran’s copayment or coinsurance or deductible payments to Medicare for which the Veteran is responsible under his health-plan contract, for services provided during his ambulance transportation services and private hospitalization at Tallahassee Memorial Hospital on April 19, 2016. VA is also prohibited from paying or reimbursing the partial amount, if any, already covered by the Veteran’s health insurance plan - Medicare Part A. Finally, payment or reimbursement of such private medical expenses is generally limited to no more than 70 percent of the amount payable under the applicable Medicare fee schedule for the treatment in question. 38 C.F.R. § 17.1005(a). As such, when implementing the award in the present case, the VAMC should consider these limitations on payment or reimbursement. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P.S. Rubin, Counsel