Citation Nr: 21077612 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 15-23 244A DATE: December 30, 2021 ORDER Payment or reimbursement for unauthorized ambulance transportation service from Pasco County Fire & Rescue (PCFR) incurred on August 26, 2014 is granted. REMANDED Payment or reimbursement for unauthorized non-VA medical services from August 26, 2014 through August 30, 2014 at Florida Hospital of Wesley Chapel (Wesley Chapel) is remanded. FINDINGS OF FACT 1. On August 26, 2014, PCFR transported the Veteran from his home to Wesley Chapel to treat emergent symptoms. 2. The Veteran's health insurance coverage does not fully extinguish his personal liability to Wesley Chapel and all the requirements under 38 C.F.R. § 17.1003(a)-(e) for payment of ambulance transportation services are satisfied in this case. CONCLUSION OF LAW The criteria for payment or reimbursement of unauthorized ambulance transportation services from PCFR incurred on August 26, 2014, are met. 38 U.S.C. §§ 1725, 5107; 38 C.F.R. §§ 17.1002, 17.1003, 17.1005. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty in the Air Force from February 1975 to February 1979. The issues are on appeal before the Board of Veterans' Appeals (Board) from a November 2014 denial by the James A. Haley Veterans Hospital in Tampa, Florida. The Veteran was scheduled for a hearing on October 20, 2021. Per his representative, the Veteran cancelled his hearing. His hearing request is considered withdrawn. 1. Unauthorized Ambulance Transport by PCFR The Veteran seeks payment or reimbursement for unauthorized ambulance transportation service from PCFR incurred on August 26, 2014. The Board finds that the evidence is at least in equipoise in support of this claim. On August 26, 2014, the Veteran's wife called for emergency services as the Veteran had been confused for the past day and demonstrated slurred speech. The Veteran had a history of low back pain and had been on narcotics. Upon admission to the emergency room, the Veteran was treated with Narcan and his conditions improved. The discharge report from August 30, 2014 showed final diagnoses of acute renal failure, secondary to acute tubular necrosis; rhabdomyolysis; acute encephalopathy, and a history of chronic obstructive pulmonary disorder. In the November 2014 decision on appeal, the Agency of Original Jurisdiction (AOJ) denied payment for the cost of the Veteran's August 26, 2014 ambulance transportation. The AOJ reasoned that the Veteran had other health insurance. The Veteran has not disputed, and evidence confirms that the Veteran had Medicare Part A. Initially, the Board notes the Veteran was service-connected for cervical spondylosis with degenerative disc disease; hiatal hernia and gastric ulcer; left elbow fracture; rhinitis; and allergic rhinosinusitis. The Veteran did not have a total and permanent service-connected disability rating and treatment for the dates of service were not for any service-connected disability or for any disability that was aggravating a service-connected disability. VA has two legal mechanisms through which it may pay for medical transportation: 38 U.S.C. §§ 111 and 1725. Section 111 authorizes Veterans Health Administration (VHA) to pay for beneficiary travel expenses "to help veterans and [] obtain care or services from VHA.... [but] does not cover payment for emergency transportation of veterans for non-service-connected conditions in non-VA facilities when the payment for transportation is covered by §§ 17.1000 through 17.1008 of this chapter, as authorized by 38 U.S.C. § 1725." 38 C.F.R. § 70.1. Initially, the Board finds that payment under 38 U.S.C. § 111 is inapplicable to the fact of this case as statute is expressly designed to pay for the expense of traveling to receive VHA care. 38 C.F.R. § 70.1(b). In this regard, the Veteran does not seek payment for transportation to help him receive VHA care, but rather payment for transportation to receive private care at Wesley Chapel. Accordingly, this case turns on entitlement to payment for ambulance service under 38 U.S.C. § 1725. The primary requirements for payment or reimbursement under 38 U.S.C. § 1725 are that a 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). A condition that a prudent layperson would reasonably expect that delay in seeking medical attention would be hazardous to life or health can include one manifested by severe pain that results in serious dysfunction of a body part. 38 C.F.R. § 17.1002(b). On the date of service, the Veteran was 62 years old and had been in an altered state with slurred speech since waking in the morning. He was hypotensive upon arrival of PCFR, and he had difficulty staying awake. The Veteran reported to PCFR that he may have taken too much of his prescribed narcotics. Indeed, the Veteran was treated with Narcan in the emergency room and his symptoms improved. The Board finds that such condition where too much narcotic is taken and causes altered state, difficulty staying awake, and slurred speech is one that a prudent layperson would reasonably expect that delay in seeking medical attention would be hazardous to life or health can include one manifested by severe pain that results in serious dysfunction of a body part. Therefore, it is undisputed that the Veteran's episode of care at Wesley Chapel was rendered in a medical emergency. Additionally, Wesley Chapel is a hospital held out as providing emergency treatment to the public. See https://www.adventhealth.com/hospital/adventhealth-wesley-chapel/emergency-care. As pertinent to the present appeal, payment or reimbursement under 38 U.S.C. § 1725 for ambulance services may be made for transporting a veteran to a facility only if the following conditions are met: (a) Payment or reimbursement is authorized under 38 U.S.C. § 1725 for emergency treatment provided at a non-VA facility, or payment or reimbursement would have been authorized under 38 U.S.C. § 1725 for emergency treatment had: (1) The veteran's personal liability for the emergency treatment not been fully extinguished by payment by a third party, including under a health-plan contract; or (2) Death had not occurred before emergency treatment could be provided; (b) The veteran is financially liable to the provider of the emergency transportation; (c) The veteran does not have coverage under a health-plan contract that would "fully" extinguish the medical liability for the emergency transportation (this condition is not 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); (d) If the condition for which the emergency transportation 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 transportation; and the veteran has no contractual or legal recourse against a third party that could reasonably be pursued for the purpose of fully extinguishing the veteran's liability to the provider; and, (e) If the veteran is not eligible for reimbursement for any emergency treatment expenses under 38 U.S.C. § 1728. 38 C.F.R. § 17.1003. In the present case, all the requirements listed under 38 C.F.R. § 17.1003(a)-(e) for payment or reimbursement of ambulance services have been satisfied. Specifically: (1) the Veteran is financially liable to the provider of the emergency ambulance transportation; (2) the Veteran does not have coverage under a health-plan contract that would fully extinguish the medical liability for the emergency ambulance transportation as his Medicare Part A did not cover any of his ambulance expenses; (3) the Veteran is not eligible for reimbursement under 38 U.S.C. § 1728 (as the Veteran did 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); and (4) the Veteran did not receive care for a work-related accident or injury. Accordingly, the facts of this case support payment for unauthorized, emergency ambulance transportation service from PCFR incurred on August 26, 2014 under 38 U.S.C. § 1725 and its implementing regulation 38 C.F.R. § 17.1003. Based on the foregoing, payment for unauthorized ambulance transportation service from PCFR incurred on August 26, 2014, is warranted subject to the provisions governing the amount of payment or reimbursement that is available under 38 U.S.C. § 1725. See 38 C.F.R. § 17.1005. REASONS FOR REMAND 1. Payment or reimbursement for unauthorized non-VA medical services from August 26, 2014 through August 30, 2014 at Florida Hospital of Wesley Chapel (Wesley Chapel) is remanded. In its initial November 2014 denial and subsequent June 2015 statement of the case (SOC), April 2016 SOC, and April 2016 supplemental statement of the case (SSOC), the AOJ continued to deny payment or reimbursement for dates of service incurred at Wesley Chapel on the basis that the Veteran had other health insurance under Medicare Part A. Again, as noted above, the Veteran does not dispute that Medicare Part A is his primary insurance. The Veteran and his representative have stated that the Veteran was appealing the denial for unauthorized non-VA medical services as Medicare Part A did not include coverage for such emergency treatment. However, it is not clear whether a claim was ever filed with Medicare for services provided by the Veteran or Wesley Chapel. The claims file does not contain any documentation from Medicare or the Centers for Medicare and Medicaid Services. Internal VA notes state that a February 2016 notification letter was sent to the Veteran stating that Medicare Part A may pay hospital claims and the co-pay was his responsibility. The Board notes that the controlling Medicare regulations specifically provide for Medicare payment in certain circumstances where emergency services are furnished by a nonparticipating hospital. See 42 C.F.R. §§ 424.100- 424.109. On remand, the AOJ should take all appropriate action to determine whether a claim/claims were made with Medicare, and if so, the date(s) on which notice was sent as to approval/disapproval of the claims. The matters are REMANDED for the following action: 1. Take all appropriate action to determine whether the fees for the Veteran's medical services provided from August 26, 2014 to August 30, 2014 by Wesley Chapel were submitted for payment/approval under Medicare Part A (to potentially include making inquiry of the named medical service providers, the Veteran, and/or the Centers for Medicare and Medicaid Services). 2. All inquiries, both positive and negative, should be documented for the record. If these costs were submitted for approval by Medicare as the primary insurer, documentation of the notice letter/date of decision(s) should be obtained and associated with the Veteran's claims VA file. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Lee 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.