Citation Nr: A21017872 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 210206-185960 DATE: November 4, 2021 ORDER Entitlement to payment or reimbursement for the cost of emergency transportation provided by EMSSTAT on March 16, 2019, is denied. Entitlement to payment or reimbursement for the cost of medical services provided by Norman Regional Hospital from March 16, 2019, to March 23, 2019, is denied. FINDINGS OF FACT 1. The $225.00 balance that the Veteran is responsible for paying to EMSSTAT for emergency transportation provided on March 16, 2019, is a copayment. 2. The $1,860.00 balance that the Veteran is responsible for paying to Norman Regional Hospital for medical services provided from March 16, 2019, to March 23, 2019, is a copayment. CONCLUSIONS OF LAW 1. The criteria for payment or reimbursement for the cost of emergency transportation provided by EMSSTAT on March 16, 2019, have not been met. 38 U.S.C. § 1725; 38 C.F.R. §§ 17.1003. 2. The criteria for payment or reimbursement for the cost of medical services provided by Norman Regional Hospital from March 16, 2019 to March 23, 2019, have not been met. 38 U.S.C. § 1725; 38 C.F.R. § 17.1002. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1954 to October 1957. In the January 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. 1. Entitlement to payment or reimbursement for the cost of emergency transportation provided by EMSSTAT on March 16, 2019 2. Entitlement to payment or reimbursement for the cost of medical services provided by Norman Regional Hospital from March 16, 2019, to March 23, 2019 Initially, under 38 U.S.C. § 1703, when VA facilities or other government facilities are not capable of furnishing economical hospital care or medical services because of geographic inaccessibility or are not capable of furnishing care or services required, VA may authorize or contract with non-VA facilities for care. 38 U.S.C. § 1703(a); 38 C.F.R. § 17.52(a). However, the Veteran has never contended, and the evidence does not demonstrate, that he received prior VA written authorization for his emergency transportation on March 16, 2019, and the private treatment from March 16, 2019, to March 23, 2019. Therefore, application of 38 U.S.C. § 1703(a) for reimbursement of authorized private treatment is unwarranted. The issue of prior authorization is thus not applicable. Service connection was not in effect for any disabilities at the time of the March 16, 2019, emergency transportation and March 16, 2019, to March 23, 2019, treatment at Norman Regional Hospital. The Veteran does not have a total and permanent service-connected disability rating, and this treatment was not for a service-connected disability or for a disability that was aggravating a service-connected disability. Likewise, the treatment was not for any injury or an 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. Payment or reimbursement for private emergency medical treatment may be considered under 38 U.S.C. § 1725. The primary requirements for payment or reimbursement under this statute are that the Veteran is treated in an emergency department or similar facility held out as providing emergency treatment to the public; the treatment received 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; and a VA or other federal facility was not feasibly available to provide the treatment. 38 C.F.R. § 17.1002(a-c). This can include emergency transportation. See 38 C.F.R. § 17.1003. The Court of Appeals for Veterans Claims (Court) has found it clear from the plain language of 38 U.S.C. § 1725(b)(3)(B) that Congress intended 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. Staab v. McDonald, 28 Vet. App. 50, 55 (2016). 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. The implementing VA regulations, 38 C.F.R. §§ 17.1002(f) and 17.1003(c), were amended in January 2018 to reflect the Court's holding in Staab. Under the amended versions of 38 C.F.R. §§ 17.1002(f) and 17.1003(c), payment or reimbursement under 38 U.S.C. § 1725 for emergency treatment and emergency transportation 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 rules 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. See 83 Fed. Reg. 974 (Jan. 9, 2018). 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. A coinsurance or deductible can be reimbursed, while a copayment may not be. See 38 U.S.C. § 1725(c)(4)(D); 38 C.F.R. § 17.1005; Wolf v. Wilkie, 32 Vet. App. 1, 35 (2019). The claims form for the March 16, 2019, emergency transportation states that the total charges were $1,660.00 and that $242.03 was paid by the Veteran's Medicare Advantage plan. A National Standard Intermediary Remittance Advice report states that the Veteran's total amount owed for the emergency transportation was a $225.00 copayment, and that there had been an adjustment of the charges such that nothing more was owed after the copayment and what the Medicare Advantage had already paid. Regarding the March 16, 2019, to March 23, 2019, hospitalization at Norman Regional Hospital, a Provider Remittance Advice form from the Medicare Advantage plan is of record. It states that the total charges for the hospitalization were $81,166.97, and that $3,529.80 was paid by the Medicare Advantage plan and that the amount owed was reduced by a $75,777.17 adjustment. The balance that the Veteran owed was a $1,860.00 copayment. In summary, the record shows that the balances that the Veteran owes for the March 16, 2019, emergency transportation and the March 16, 2019, to March 23, 2019, hospitalization at Norman Regional Hospital are copayments. Therefore, the claims must unfortunately be denied because the Veteran is not financially liable beyond having to make copayments. See 38 C.F.R. §§ 17.1002(f), 17.1003(c); Wolf, 32 Vet. App. at 35. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott Shoreman, 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.