Citation Nr: 21002514 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 14-41 095A DATE: January 13, 2021 REMANDED Entitlement to reimbursement for medical expenses incurred related to a June 18, 2014 Orlando Health Hospital Emergency Room visit is remanded. REASONS FOR REMAND The appeal comes to the Board of Veterans’ Appeals (Board) from an August 2014 decision of the Orlando VAMC. The Appellant requested, and was scheduled for, a hearing before a member of the Board in January 2019; he failed to report to his scheduled hearing and did not show good cause for doing so. Accordingly, the hearing request is deemed withdrawn. 38 C.F.R. § 20.704. Before turning to the merits of the appeal, a brief discussion of the relevant law and recent legal developments is warranted for guidance on remand. Payment or reimbursement for private emergency medical treatment may be considered under 38 U.S.C. § 1725. Payment or reimbursement under 38 U.S.C. § 1725 for emergency treatment (including medical services, professional services, ambulance services, ancillary care and medication (including a short course of medication related to and necessary for the treatment of the emergency condition that is provided directly to or prescribed for the patient for use after the emergency condition is stabilized and the patient is discharged)) will be made only if all of the following conditions are met: (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 (this standard would be met if there were an emergency medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) that a prudent layperson who possesses an average knowledge of health and medicine could reasonably expect the absence of immediate medical attention to result in placing the health of the individual in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part); (c) A VA or other Federal facility/provider that VA has an agreement with to furnish health care services for veterans was not feasibly available and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson (as an example, these conditions would be met by evidence establishing that a veteran was brought to a hospital in an ambulance and the ambulance personnel determined the nearest available appropriate level of care was at a non-VA medical center); (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 does not have coverage under a health-plan contract that would fully extinguish the medical liability 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 the failure to exhaust appeals of the denial of payment); (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 the veteran has no contractual or legal recourse against a third party that could reasonably be pursued for the purpose of extinguishing, in whole, the veteran’s liability to the provider; and (h) The veteran is not eligible for reimbursement under 38 U.S.C. § 1728 for the emergency treatment provided. See 38 C.F.R. § 17.1002. In 2016, the Court of Appeals for Veterans Claims (Court) addressed a medical reimbursement balance from Medicare issue, and found that Congress intended 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. Staab v. McDonald, 28 Vet. App. 50, 55 (2016). The Court also ruled that the regulatory provision barring deductibles and coinsurance from reimbursement was inconsistent with the statutory provisions. Subsequently, 38 C.F.R. § 17.1002(f), was amended in January 2018, ostensibly to reflect the Court’s holding. 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 liability for the emergency treatment. The interim final rule became effective on January 9, 2018 and applied to all claims pending on or after April 8, 2016, which includes the claim on appeal. See 83 Fed. Reg. 974 (Jan. 9, 2018). Curiously, the revised regulation continued to provide, under 38 C.F.R. § 17.1005(a)(5), “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.” (compare 38 U.S.C. § 1725(c)(4)(D) “The Secretary may not reimburse a veteran under this section 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 Wolfe v. Wilkie, 32 Vet. App. 1 (2019) the Court certified a class action alleging, inter alia, the 2018 regulation ran afoul of the ruling in Staab, insofar as in practice the reimbursement of coinsurance and deductibles continued to be denied under the regulation. In that decision, the Court invalidated 38 C.F.R. § 17.1005(a)(5), noting it to be inconsistent with the Court’s prior holding in Staab. The Court further found that that deductibles and coinsurance are not similar to copayments, and while copayments cannot be reimbursed under 38 U.S.C. § 1725(c)(4)(D), VA must reimburse coinsurance and deductibles in claims under 38 U.S.C. § 1725. Here, the Wolfe holding is applicable to this claim as it was denied on the basis that the VA lacks authority to pay balances due after a non-VA source makes payment. See Statement of the Case (SOC). Applying Wolfe, this basis for denial is overbroad and not consonant with the current status of the law, which only bars copayments and the like. However, the Board cannot grant the benefit sought as there are questions of fact that must be developed. The record shows that the Appellant has Medicare Part A, and partial payment was made by Medicare Part A for the hospital bill; a balance of $1216 remained the Appellant’s responsibility. However, the exact classification of this balance is unclear. Moreover, the ambulance bill of $433.98 does not show any payment from Medicare Part A or B or application therefor, the latter of which is a requirement for potential payment. Further, it is unclear if the Appellant meets the other requirements of 38 U.S.C. § 1725, such as using the VA health care system during the preceding 24 months. It is noted, for clarity, that the Appellant stated he would have been better situated by not applying for Medicare benefits. It is noted that a claimant is required under the law to apply to exhaust all other potential avenues before the VA may provide any payment under 38 U.S.C. § 1725, as the VA is a payer of last resort. Failure to seek reimbursement when covered by a non-VA plan typically results in a full denial of the VA benefit sought. For these reasons, the claim must be remanded for development and application of the provisions set forth in Wolfe. The appeal is REMANDED for the following action: Perform the development necessary to determine all elements of 38 U.S.C. § 1725, to include ascertaining whether the whether the Appellant was enrolled in the VA health system and was treated in the prior 24 months, whether reimbursement of the costs of the emergency transportation was sought from Medicare A and B and the disposition of such, and the precise nature of the remaining balance(s) claimed (i.e. copayments, coinsurance, deductibles, remaining balance, see Wolfe v. Wilkie, 32 Vet. App. 1 (2019)). Thereafter, readjudicate the claim. If the benefit sought on appeal remains denied, issue a Supplemental Statement of the Case (SSOC). Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. C. King, Associate 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.