Citation Nr: 19166149 Decision Date: 08/27/19 Archive Date: 08/27/19 DOCKET NO. 18-38 438A DATE: August 27, 2019 ORDER Entitlement to payment or reimbursement for the cost of non-VA medical care provided on April 27, 2015, at Providence Sacred Heart Medical Center (PSHMC), in Spokane, Washington, is granted. FINDINGS OF FACT 1. The Veteran was hospitalized for a nonservice-connected condition at PSHMC on April 27, 2015. That hospitalization constituted emergency treatment and a VA facility was not feasibly available at the time. 2. The Veteran’s private health insurance, Medicare Part A and Part B, appears to have covered a portion of the medical expenses and costs for the Veteran’s private hospitalization on April 27, 2015. CONCLUSION OF LAW The criteria are met for payment or reimbursement of unauthorized medical expenses incurred during a non-VA hospitalization at PSHMC on April 27, 2015. 38 U.S.C. §§ 1725, 5107; 38 C.F.R. §§ 17.1001, 17.1002, 17.1005. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from April 1969 to February 1972. The Veteran died on April [Redacted], 2015. The appellant represents the Veteran’s estate in this case. This case comes before the Board of Veterans’ Appeals (Board) on appeal from June 2015 and July 2015 administrative decisions issued by the Department of Veterans Affairs (VA) VISN 20 Northwest Network Payment Center. This appeal was processed after reviewing a paper-based claims file and relevant electronic records maintained in the Veterans Benefits Management System (VBMS) and Virtual VA (VVA) databases. Factual Background The facts in this case are not in dispute: On April 27, 2015, the Veteran presented to the emergency department at PSHMC after he experienced a syncopal episode while walking on the treadmill at cardiac rehab. Specifically, the Veteran indicated that he was walking on the treadmill at approximately 2.9 miles per hour with a 1% incline when he suddenly felt light-headed and had a syncopal event. The Veteran indicated that he lost consciousness for approximately 10 seconds and that he fell forward and landed on his shoulder. He indicated that he did not strike his head when he fell. He denied having any chest pain, shortness of breath, nausea, or vomiting prior to, or after, the syncopal event. He did state that he was having some “heartburn.” Which was relieved by taking Pepcid. After running a series of tests and scans, the emergency room physician diagnosed the Veteran as having “syncope, unspecified syncope type.” During the examination, the Veteran was asymptomatic. The Veteran was discharged home in stable condition with instructions to follow up with the VA medical center in one day. Incidentally, on April [Redacted], 2015, the Veteran was readmitted to PSHMC with complaints of chest pain. He was diagnosed as having experienced an acute myocardial infarction. He was then prepped for a coronary angiography, left heart catheterization, and left ventriculography. Unfortunately, the Veteran responded poorly to the procedures and, despite all resuscitative efforts, he died. His cause of death was listed as myocardial infarction and cardiogenic shock, prior coronary artery reimplantation and single coronary ostium obstruction, and aortic valve disease. Subsequently, VA received claims from seeking payment or reimbursement of medical expenses incurred on April 27, 2015. The first claim was for services rendered by American Medical Response (Ambulance-992029998) in the amount of $715.99 (it is unclear how much of this amount was covered by Medicare). The second claim was for services rendered by Integra Imaging East PS Spokane, Sacred Heart Medical Center ER, in the amount of $25.00 (it is unclear how much of this amount was covered by Medicare). The third claim was for services rendered by Spokane Emergency Physicians PS, in the amount of $904.00 (it is unclear how much of this amount was covered by Medicare). In June 2015 and July 2015 administrative decisions, the VISN 20 Northwest Network Payment Center denied the appellant’s claims for payment or reimbursement of the medical expenses incurred on April 27, 2015. Thereafter, the appellant timely appealed those decisions to the Board. Analysis The record does not show that the Veteran had any service-connected disabilities at the time of his hospitalization, nor that the Veteran was a participant in a vocational rehabilitation program. Therefore, the Veteran does not meet the criteria for payment of authorized or unauthorized medical expenses of 38 U.S.C. § 1728; thus, the appellant’s claim for payment must be considered under criteria for determining entitlement under the Veterans Millennium Healthcare and Benefits Act, 38 U.S.C. § 1725; 38 C.F.R. §§ 17.1000-17.1008. At the outset, the Board notes that a review of the relevant evidence demonstrates that the Veteran has already met many of the substantive and administrative criteria for payment or reimbursement of nonservice-connected medical care listed under 38 U.S.C. § 1725 and 38 C.F.R. § 17.1002. Specifically, there is no question that the services provided on April 27, 2015, were provided in a hospital emergency department; that 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; that the Veteran is financially liable to the private provider for his treatment; that the nonservice-connected chest/arm pain was not caused by an accident or work-related injury for which the Veteran would have contractual or legal recourse against a third party such as state-mandated automobile reparations insurance; that the Veteran is not eligible for reimbursement under 38 U.S.C. § 1728; and that the claim was filed in a timely manner. See 38 C.F.R. §§ 17.1002. Moreover, VA has already determined that there was no indication that the Veteran stayed in the private hospital past the time that he became stabilized. Further, the evidence is at least in equipoise that the Veteran’s treatment was emergent; and that 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. The only remaining issue, and the central issue, is whether the Veteran has no coverage under a health-plan contract for payment or reimbursement. The claim was denied on the basis of the Veteran having private health insurance. Specifically, the June 2018 Statement of the Case noted that the Veteran had “other” medical insurance coverage. Indeed, the Board finds that the Veteran did have Medicare part A and part B during his medical treatment at PSHMC. However, in April 2016, the Court of Appeals for Veterans Claims (Court) in Staab, 28 Vet. App. at 55 (2016) 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 the applicable statute - 38 U.S.C. § 1725. 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, to include Medicare, when the amount covered by the third party was less than total. The Court determined that since the implementing regulation, 38 C.F.R. § 17.1002(f), did not execute the language of the statute or the intent of Congress, it is “invalid and will be set aside by the Court.” The Court noted that 38 C.F.R. § 17.1002(f) was “wholly inconsistent with” the plain meaning of § 1725 and Congressional intent that veterans be reimbursed for portion of their emergency medical costs that was not covered by a third-party insurer and for which they were otherwise personally liable. Id. Specifically, the applicable parts of the governing statute in the present case, 38 U.S.C. § 1725(b)(3)(B) and (C), state 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. Simply stated, reimbursement is prohibited only if the health-plan contract wholly extinguishes the Veteran’s liability. In addition, in January 2018, VA issued an interim final rule revising its regulations concerning payment or reimbursement for emergency treatment for non-service connection conditions at non-VA facilities. In order to implement Staab, VA amended 38 C.F.R. §§ 17.1002, 17.1003, and 17.1005 to expand eligibility for emergency treatment and/or emergency transportation to include veterans who receive partial payment from a health-plan contract. Reimbursement remains prohibited only if the health-plan contract wholly extinguishes the veteran’s liability. Under the amended version of 38 C.F.R. § 17.1002(f), payment or reimbursement under 38 U.S.C. § 1725 for emergency treatment will be made if a Veteran does not have coverage under a health-plan contract that would fully extinguish the medical liability for the emergency treatment. The interim final rule became effective on January 9, 2018 and applies to all claims pending on or after April 8, 2016, which includes the Veteran’s particular claim. Therefore, the amended regulation allows for payment or reimbursement through VA for the balance of medical expenses that remains when a third-party payer would extinguish only part of a veteran’s liability. As discussed above, the Veteran meets all the eligibility requirements for repayment by VA of the medical expenses he incurred during a private hospitalization with PSHMC on April 27, 2015. The Court’s recent decision in Staab confirms that even though the Veteran had private health insurance coverage through Medicare, and such coverage paid for a portion (but not all) of his emergency care bill, he is not barred from payment or reimbursement of the balance of his hospital bills that remained unpaid after his private insurance made its payment. Accordingly, the Board finds that payment or reimbursement of unauthorized medical expenses incurred during a non-VA treatment on April 27, 2015, at PSHMC, 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. In this regard, VA is prohibited from paying the Veteran’s copayment or coinsurance or deductible payments to Medicare for which the Veteran is responsible under his private health-plan contract, for services provided during his private hospitalization with PSHMC on April 27, 2015. 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 VA Medical Center should consider these limitations. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. L. Marcum, 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.