Citation Nr: 19152804 Decision Date: 07/09/19 Archive Date: 07/08/19 DOCKET NO. 15-07 952 DATE: July 9, 2019 REMANDED Payment or reimbursement of medical expenses incurred from September 13 to 15, 2014, at Ocala Regional Medical Center (ORMC) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1956 to May 1959. This appeal is before the Board of Veterans’ Appeals (Board) from October 2014 decisions of the VA Veterans Health Administration (VHA). In this case, the Veteran has requested reimbursement for medical expenses for treatment at ORMC from September 13 through September 15, 2014. He contends that his treatment at ORMC on those dates was rendered in a medical emergency, as he was having shortness of breath and faintness, contacted VA, and was told to go directly to the nearest hospital emergency room (ER), which was at ORMC; there, he was treated for a heart condition. He also asserts that he requested transportation to the nearest VA facility while at ORMC or to be discharged, but was told he was too unstable to be transferred or discharged given his vitals and medical condition; he asserts that the nearest VA facility was a 50-mile trip. Pursuant to 38 U.S.C. § 1725, under certain circumstances, VA shall reimburse a veteran for the reasonable value of emergency treatment furnished the veteran in a non-Department facility. VA regulations at 38 C.F.R. §§ 17.1000 through 17.1008 constitute the requirements under 38 U.S.C. § 1725 that govern VA payment or reimbursement for non-VA emergency services furnished to a veteran for nonservice-connected conditions. 38 C.F.R. § 17.1000. The record does not reflect, and the agency of original jurisdiction (AOJ) has never contended, that the Veteran’s treatment at the ORMC ER on September 13, 2014, was not for a medical emergency or that a VA facility was feasibly available to the Veteran at that time. See 38 C.F.R. § 17.1002. The Veteran was seen at the ORMC ER on that date for increasing shortness of breath, with a history of chronic obstructive pulmonary disease, anemia of chronic disease, chronic renal insufficiency, congestive heart failure, hypertension, and uncontrolled diabetes mellitus, and having been admitted to the hospital 3 times the previous month. Likewise, the record does not reflect, and the AOJ has never contended, that the Veteran’s condition had stabilized prior to September 15, 2014, and that he could have been transferred from ORMC to a VA-related facility for continuation of treatment prior to his discharge. See 38 C.F.R. §§ 17.1001(d), 17.1005(b), (c). Rather, as reflected in its October 2014 decisions and a December 2014 statement of the case, the AOJ denied payment or reimbursement under 38 U.S.C. § 1725 on the sole basis that the Veteran was found to have had insurance that would pay the whole or part of his treatment, rendering him ineligible for such benefits. However, subsequent to the AOJ’s decisions, the United States Court of Appeals for Veterans Claims (Court) held that the regulatory provision under which the AOJ denied the Veteran’s claim (denied coverage under § 1725 because the Veteran had coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the emergency treatment) was invalid. See Staab v. McDonald, 28 Vet. App. 50, 55 (2016). Consequently, VA changed its regulation to conform to the Court’s interpretation, so that a veteran would only be barred from benefits under § 1725 where he or she does not have coverage under a health-plan contract that would fully extinguish the medical liability for the emergency treatment. See 38 C.F.R. § 17.1002(f); 83 FR 974, 979 (January 9, 2018). Nonetheless, reimbursement under 38 U.S.C. § 1725 may be provided by VA “only after the veteran or the provider of emergency treatment has exhausted without success all claims and remedies reasonably available to the veteran or provider against a third party for payment of such treatment.” 38 U.S.C. § 1725(c)(2); see also 38 C.F.R. § 17.1002(f). If a veteran has recourse against a third party that would partially pay for emergency treatment, the amount payable by VA for such treatment is the amount by which the costs for the emergency treatment exceed the amount payable or paid by the third party; in such cases, VA is the secondary payer only. In any case, VA may not reimburse a Veteran for any copayment or similar payment for which the Veteran is responsible under a health-plan contract with a third party. 38 U.S.C. § 1725(c)(4). In this case, it is unclear from the record exactly what non-VA health coverage the Veteran had at the time of his September 13 to 15, 2014, treatment at ORMC; whether any such coverage did, or would have, reimbursed any part of the expenses of such treatment and, if so, to what extent; and what portion of expenses incurred from September 13 to 15, 2014, at ORMC were not covered by a health-plan contract, not including any copayment or similar payment for which the Veteran is responsible under a health-plan contract with a third party. As reflected in an October 2014 VHA administrative note and the AOJ’s December 2014 statement of the case, the AOJ determined that the Veteran had had Medicare Parts A and B during the treatment in question. As reflected in his October 2014 notice of disagreement and January 2015 substantive appeal, the Veteran asserts that he did not have Medicare Part B, but, rather, only had Medicare Part A. In this regard, a claim form for payment submitted to VA in September 2014 reflects that he Veteran’s insurance coverage included VA coverage and “MEDCARE PART A ONLY.” Therefore, the nature of the Veteran’s coverage under any health-plan contract during his September 13 to 15, 2014, treatment at ORMC must be clarified. The matter is REMANDED for the following action: 1. Take appropriate steps to clarify the following matters, including all appropriate supporting documentation: (a.) What non-VA health coverage, to include Medicare, the Veteran had at the time of medical care at ORMC from September 13 to 15, 2014; (b.) Whether any such coverage reimbursed any part of the expenses of such treatment and, if so, to what extent; and (c.) What portion of expenses incurred at ORMC from September 13 to 15, 2014, were not covered by a health-plan contract, not including any copayment or similar payment for which the Veteran is responsible under a health-plan contract with a third party. 2. After completing the above and any other necessary development, readjudicate the appeal under the current version of 38 C.F.R. § 17.1002. [SIGNATURE ON NEXT PAGE] JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Andrew Mack, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.