Citation Nr: A21020122 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 210611-195029 DATE: December 16, 2021 REMANDED Entitlement to reimbursement for ambulance transportation incurred on March 17, 2020, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1964 to July 1966. The decision on appeal was issued in May 2021 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the June 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. Reimbursement for Ambulance Transportation The Veteran is claiming entitlement to reimbursement for the cost of ambulance transportation provided to him on March 17, 2020 to a private hospital for the treatment of a non-service-connected condition, an acute embolic stroke. In the May 2021 decision letter to the Veteran, the AOJ denied the Veteran's reimbursement claim for ambulance transportation on March 17, 2020 under 38 U.S.C. § 1703 because the claim did not meet all required criteria under 38 U.S.C. § 111. VA has two legal mechanisms through which it may pay for medical transportation: 38 U.S.C. §§ 111 and 1725. Section 111 authorizes the 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. In this case, the Veteran does not seek payment for transportation to help him receive VHA care, but rather payment for transportation to receive care at a private hospital. Accordingly, this case turns on entitlement to reimbursement for an ambulance service under 38 U.S.C. § 1725, which was not addressed in the decision on appeal. 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). 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. The Veteran's VA treatment records indicate that he had Medicare Part A. Reimbursement under 38 U.S.C. § 1725 may be provided by VA "only after the veteran or the provider of emergency treatment has exhausted without success all claims and remedies reasonably available to the veteran or provider against a third party for payment of such treatment." 38 U.S.C. § 1725(c)(2); see also 38 C.F.R. § 17.1002(f). If a Veteran has recourse against a third party that would partially pay for emergency treatment, the amount payable by VA for such treatment is the amount by which the costs for the emergency treatment exceed the amount payable or paid by the third party; in such cases, VA is the secondary payer only. In any case, VA may not reimburse a Veteran for any copayment or similar payment for which the Veteran is responsible under a health-plan contract with a third party. 38 U.S.C. § 1725(c)(4). The AOJ did not properly consider the Veteran's claim under the provisions of 38 U.S.C. § 1725 in the May 2021 decision. As the AOJ did not properly develop and consider the Veteran's reimbursement claim under the applicable law and regulations, the evidence of record at the time of the May 2021 decision did not include sufficient information to determine whether the Veteran or provider of emergency treatment had exhausted all claims and remedies available against a third-party health-plan contract, such as Medicare for the transportation cost. In addition, as the decision did not address or provide the Veteran with notice of 38 U.S.C. § 1725(c)(4), adequate notice of the decision must also be provided. 38 U.S.C. § 5104. The matters are REMANDED for the following action: 1. Request information from the Veteran addressing whether the cost of ambulance transportation on March 17, 2020 was covered in whole or in part by a third-party health plan, such as Medicare Part A and whether the Veteran had any copayments. 2. Issue the appellant a notice of decision on the issue of entitlement to payment of the cost of ambulance transportation on March 17, 2020, as described in 38 U.S.C. § 5104. The notice shall include but is not limited to: a summary of the evidence; a summary of the applicable laws and regulations; identification of findings favorable to the claimant; and, identification of the substantive conditions not satisfied but necessary for payment of the cost of ambulance transportation under 38 U.S.C. § 1725 and 38 C.F.R. § 17.1002. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Marenna, 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.