Citation Nr: 21063075 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 16-12 538A DATE: October 13, 2021 REMANDED Entitlement to payment or reimbursement of medical expenses incurred on September 7, 2014 at Banner Baywood Medical Center (B.B.M.C.) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from March 1962 to November 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 decision by the Department of Veterans Affairs (VA) Consolidated Payment Center (CPC). In the Veteran's April 2016 substantive appeal (VA Form 9), the Veteran requested a Board hearing at a local VA office. The Veteran was scheduled for a Travel Board hearing on August 27, 2021. However, he did not request postponement of the hearing, did not appear for the hearing, and did not request for the hearing to be rescheduled. As such, his hearing request is deemed withdrawn and the matter is properly before the Board. 38 C.F.R. § 20.704 (d). Here, the issue before the Board is whether the Veteran is entitled to payment or reimbursement of medical expenses incurred on September 7, 2014 at a non-VA emergency room. The Veteran contends he was instructed by VA providers to go to the closest emergency room if in an emergent situation. He reports he was suffering from heart attack symptoms with extreme shortness of breath. He reported the VA facility is over 40 miles away from his home and instead, he went to the closest emergency room. The Veteran reported his symptoms were an exacerbation of the prescription regimen prescribed by his VA physician. He also contends it was the responsibility of the non-VA facility B.B.M.C. to bill the VA within the required time frame and concluded he is not responsible for the bill for services rendered. The non-VA emergency room treatment from September 7,2014 was not pre-authorized by VA. See 38 C.F.R. § 17.52 (a), generally indicating that VA must authorize non-VA treatment at private facilities. Also, the Veteran does not have a total and permanent service-connected disability rating and this treatment was not for any service-connected disability or for any disability that was aggravating a service-connected disability. Likewise, the treatment was not for any injury or illness incurred in relation to participation in a vocational rehabilitation program. Consequently, the Veteran is not eligible for payment or reimbursement for the claimed emergency treatment under 38 U.S.C. § 1728. See 38 C.F.R. § 17.120. Nonetheless, payment or reimbursement for private emergency medical treatment may be considered under 38 U.S.C. § 1725. There are three primary requirements for payment or reimbursement under this statute. The Veteran must be treated in an emergency department or similar facility held out as providing emergency treatment to the public. Also, the treatment received must be 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. Additionally, a VA or federal facility must not be feasibly available to provide the treatment and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson. 38 C.F.R. § 17.1002 (a-c). There are additional criteria that must be met in order to award payment or reimbursement of the cost of private medical services under 38 U.S.C. § 1725. The Veteran's claim was denied on the basis that the Veteran had other insurance coverage for the date of service and the claim was untimely filed. The United States Court of Appeals for Veterans Claims has held that 38 C.F.R. § 17.1002 (f), which previously provided that a veteran must not have coverage "in whole or in part" under a health-plan contract as a condition of eligibility for VA reimbursement of unauthorized medical expenses was invalid, and that a Veteran with only partial coverage under a health care plan, including Medicare and Medicaid, could seek payment or reimbursement for the expenses for which he had personal liability. Staab v. McDonald, 28 Vet. App. 50 (2016). In short, partial coverage under a health-plan contract, including under Medicare Parts A and B, for the non-VA emergency treatment at issue, is not a bar to eligibility for VA reimbursement of any remaining uncovered balance under 38 U.S.C. § 1725. If the Veteran has only partial coverage by Medicare for his treatment at B.B.M.C., he is not necessarily ineligible for reimbursement of any remaining balance. Here, the Veteran's claim for payment or reimbursement for non-VA services provided on September 7, 2014 at B.B.M.C. was denied on the basis the Veteran has other healthcare coverage (Medicare Part A, United Healthcare, and Medco) and the claim for emergency care was filed untimely. However, in April 2016, the United States Court of Appeals for Veterans Claims invalidated and set aside 38 C.F.R. § 17.1002 (f) to the extent that the regulation acts as a bar to reimbursement in cases where a Veteran has partial coverage under a health plan. See Staab v. McDonald, 28 Vet. App. 50, 55 (2016). Accordingly, in cases where an appellant seeking payment or reimbursement has partial coverage, such as private insurance or Medicare for the medical care at issue, VA payment or reimbursement is not precluded as a matter of law. Additionally, the Veteran's claim was denied for being untimely filed. The services were rendered September 7, 2014 and the evidence reflects the claim was received in February 2015. A threshold requirement under 38 U.S.C. § 1725 is that the claim for payment or reimbursement be filed within 90 days after the latest of the following: (1) The date 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). As VA payment or reimbursement is not precluded as a matter of law in cases where an appellant seeking payment or reimbursement has partial coverage, such as private insurance or Medicare for the medical care at issue, additional development is required regarding whether the Veteran's private insurance issued payment for the claim. In order for Veterans to be eligible for VA payment or reimbursement of the cost of private emergency medical expenses under 38 U.S.C. § 1725 and 38 C.F.R. § 17.1002 (a-h), VA must provide payment or reimbursement for any deductibles or coinsurance amounts not covered by the Veteran's other insurance. VA is still prohibited from providing payment or reimbursement for copayments. 38 U.S.C. § 1725 (c)(4)(D). Unfortunately, the record does not contain enough information to allow the Board to make an informed determination on the claim. It does not appear that any Medicare information or other private insurance records, including an Explanation of Benefits (EOB) or other remittance, standard billing form, or payment information were associated with the Veteran's record at the time of the decision on appeal. As such, this matter will be remanded for further development. The matter is REMANDED for the following actions: 1. Develop the appeal as needed to ascertain what portion of the remaining balance from Banner Baywood Medical Center exists, including whether it is a copayment, deductible, coinsurance, or other medical expense. If the provider and/or insurer is unable to specify the type of charges comprising the remaining balance, inquire with the provider and/or insurer whether any portion of the remaining balance is a copayment. Undertake efforts to obtain a copy of any relevant EOBs and/or payment information that pertain to the Veteran's episode of care on September 7, 2014. Efforts should include, but need not be limited to, contacting the Veteran, Banner Baywood Medical Center, and, if necessary, the Centers for Medicare & Medicaid Services. Efforts to obtain the evidence should be fully documented and should be discontinued only if it is concluded that the evidence sought does not exist or that further efforts to obtain the evidence would be futile. The EOB(s), if procured, should be associated with the record. If the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. (Continued on next page) Ensure that all of the documentation relevant to the Veteran's claim has been scanned and uploaded to his electronic claims file, to include information with respect to the amount(s) of any remaining balance(s) (i.e. copayments, coinsurance, deductibles, remaining balance, see Wolfe v. Wilkie, 32 Vet. App. 1 (2019) and 38 C.F.R. § 17.1005), as well as any standard billing forms/applications for reimbursement that underlie the claim. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Mouzakis, 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.