Citation Nr: 1825867 Decision Date: 04/30/18 Archive Date: 05/07/18 DOCKET NO. 14-34 272A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Portland, Oregon THE ISSUE Entitlement to payment for services rendered by Providence Portland Medical Center, Providence Hospitalists East and American Medical Response, Portland, Oregon, from January 2, 2014, to January 13, 2014. ATTORNEY FOR THE BOARD K. Parke INTRODUCTION The Veteran served on active duty from October 1963 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March and April 2014 decisions of the Department of Veterans Affairs Medical Center (VAMC) in Portland, Oregon. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, a remand is required in this case for the issue on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that the Veteran is afforded every possible consideration. Regarding the medical expenses incurred at Providence Portland Medical Center, Providence Hospitalists East and American Medical Response, Portland, Oregon, from January 2, 2014, to January 13, 2014, the Explanations of Benefits notices from the Veteran's insurance company (United Healthcare) for services provided by this facility are not of record. The record contains several Health Insurance Claim Forms, and the indication on those forms is that the claims were provided to United Healthcare. The Health Insurance Claims Forms indicate that none of the claimed payments were fulfilled (Amount Paid $0.00). The claims file does not contain any information about how much of the Veteran's medical expenses were covered by United Healthcare. As such, the claim must be remanded so that this information can be added to the claims file. The March and April 2014 notices provided to the Veteran denying payments noted that the Veteran's claims were denied because he has third party insurance coverage that is primary to VA coverage. The September 2014 Statement of the Case (SOC) stated that the "veteran must have no other health care coverage." He was noted to have third party insurance. The applicable statute at issue is 38 U.S.C. § 1725(b)(3)(B) (2012), and states 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. The implementing regulation of 38 U.S.C. § 1725(b)(3)(B) is 38 C.F.R. § 17.1002 (2017), which provides that payment or reimbursement for emergency services for nonservice-connected disabilities in non-VA facilities is made if the following is met: (f) The veteran has no coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the emergency treatment (this condition cannot be met if the veteran has coverage under a health-plan contract but payment is barred because of a failure by the veteran or the provider to comply with the provisions of that health-plan contract, e.g., failure to submit a bill or medical records within specified time limits, or failure to exhaust appeals of the denial of payment). 38 C.F.R. § 17.1002(f). However, in a recent Court decision, Staab v. McDonald, 28 Vet. App. 50 (2016), the 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 38 U.S.C. § 1725(b)(3)(B). The Court found it clear from the plain language of 38 U.S.C. § 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 does not execute the language of the statute or the intent of Congress, it is "invalid and will be set aside by the Court." 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 his private insurance company. 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 the veteran owes the third party. Unfortunately, currently the record does not contain enough information for the Board to make a determination on the reimbursement of medical expenses. Specifically, it is unclear if the Veteran is seeking reimbursement/payment for medical expenses other than copayments or deductibles. Additionally, the Court's decision in Staab may impact the Portland, Oregon Veterans Health System decision depending on if the Veteran is seeking reimbursement for payments other than for copayments or deductibles. On remand, the missing Explanations of Benefits must be added to the claims file. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he obtain and submit the Explanations of Benefits from his insurance company (United Healthcare) for care received from Providence Portland Medical Center, Providence Hospitalists East and American Medical Response, Portland, Oregon, from January 2, 2014, to January 13, 2014. If possible, assist the Veteran in obtaining these documents. 2. Then, readjudicate the claim in accordance with the holding of Staab v. McDonald, 28 Vet. App. 50 (2016). If any benefit sought is not granted, the Veteran should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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). 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. §§ 5109B, 7112. _________________________________________________ DELYVONNE M. WHITEHEAD Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, 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).