Citation Nr: A21020559 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 200420-153126 DATE: December 27, 2021 ORDER Entitlement to payment for cost of non-VA emergency medical services provided to the Veteran for an episode of care beginning May 28, 2019 is granted. FINDINGS OF FACT 1. In June 2019, a VA Medical Center issued a decision finding that the Veteran's acute inpatient medical care at Lake Wales Clinic from May 28, 2019 to June 5, 2019 met the clinical criteria for payment of unauthorized emergency medical care under 38 U.S.C. § 1725; such favorable finding is binding on the Board. 2. The Veteran's other health insurance did not fully extinguish his financial liability for the emergency medical care in question. CONCLUSION OF LAW The criteria for payment or reimbursement for cost of non-VA emergency medical services provided to the Veteran for the episode of care beginning May 28, 2019 have been met. 38 U.S.C. §§ 1703, 1725, 1728, 5107; 38 C.F.R. §§ 3.104, 17.120, 17.121, 17.1002. REASONS AND BASES FOR FINDINGS AND CONCLUSION This matter comes before the Board of Veterans' Appeals (Board) on appeal from a letter sent to the Veteran in March 2020 by the Veterans Health Administration (VHA) Office of Community Care. In the April 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Evidence Submission 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, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. Entitlement to payment for cost of non-VA emergency medical services provided to the Veteran for an episode of care beginning May 28, 2019 is granted. In the March 2020 letter, the VHA Office of Community Care sent the Veteran notice that they had received a claim for reimbursement from Lake Wales Clinic Corp of the costs of non-VA emergency medical treatment incurred in connection with an episode of care beginning May 29, 2019. The letter indicated that the claim was reviewed under 38 U.S.C. § 1725, and that the claim had been rejected because an Explanation of Benefits or other remittance from the Veteran's other health insurance was needed in order for VA to process the claim as a secondary payer. While the letter indicated that "[t]his is not a denial," confusingly, VHA included an attachment specifying the Veteran's right to seek further review of the healthcare benefits decision, leading the Veteran to file the April 2020 VA Form 10182. The Veterans Millennium Health Care and Benefits Act provides general authority for reimbursement for the reasonable value of emergency treatment furnished in a non-VA facility to those veterans who are active VA health-care participants (i.e., enrolled in the annual patient enrollment system and recipients of a VA hospital, nursing home, or domiciliary care under such system within the last 24-month period) and who are personally liable for such non-VA treatment and not eligible for reimbursement under the provisions of 38 U.S.C. § 1728. 38 U.S.C. § 1725; 38 C.F.R. §§ 17.1000-1008. 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 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. 38 C.F.R. § 17.1002. The Board notes that the Veteran was not permanently and totally disabled due to his service-connected disabilities at the time of his admission to the private facility, and his treatment was not for any service-connected disability or for any disorder that was aggravated by his/her service-connected disabilities. Likewise, the Veteran's treatment was not for any injury or illness contracted in the course of a rehabilitative program. The Board notes that contemporaneous emergency treatment records from the Lake Wales Medical Center document that the Veteran's emergency treatment in May and June 2019 was for symptoms of his major depressive disorder, which was later granted service connection effective from September 12, 2019. However, 38 C.F.R. § 17.126(b)(2) specifies that in the case of care or services rendered prior to a VA adjudication allowing service-connection, VA payment may only be made for such care related to the service-connected disability if such care is received within a 2-year period prior to the date the veteran filed the original or reopened claim which resulted in the award of service-connection, but never prior to the effective date of service-connection within that 2-year period. Because the episode of care in question pre-dates the effective date awarded for the grant of service connection for major depressive disorder, the emergency care is not considered to have been rendered for an adjudicated service-connected disability, and 38 U.S.C. § 1728 is therefore not applicable. See 38 U.S.C. § 1728; 38 C.F.R. § 17.120, 17.126. Turning back to entitlement under 38 U.S.C. § 1725, with his VA Form 10182, the Veteran submitted a Medicare Summary Notice from his Part A Hospital Insurance, documenting Medicare's primary payment of the claims and showing that the Veteran could still be billed $1,364. The Veteran's other health insurance thus did not fully extinguish his medical liability for the emergency treatment. With regard to the other necessary criteria for entitlement to payment for non-VA emergency medical care, the Board notes that VHA previously found that the episode of care meets the clinical criteria for §1725 eligibility. Specifically, it is documented in VHA records that a June 2019 decision approved the claim for payment for emergency medical service at Lake Wales from May 28, 2019 to June 5, 2019, noting that the admission met the prudent layperson definition of emergency and that the entirety of the stay was prior to the date of stability. A November 2019 summary of VA Payment notified the Veteran that payment had been made to the provider for the non-VA health care, in the amount of $882.12. It is unclear to the Board whether VA subsequently rescinded the payment upon learning that the Veteran had other health insurance, leading to the March 2020 letter at issue in this appeal, or whether the provider filed an additional claim beyond those granted in June 2019. However, the issue on appeal is one of entitlement to payment for the non-VA emergency care under the relevant law and regulations, and such question does not turn on whether or not payment has previously been made. Regardless, the Board is bound by the favorable findings in the June 2019 decision. 38 C.F.R. § 3.104(c). Thus, entitlement to payment for unpaid costs of non-VA emergency medical services provided to the Veteran for the episode of care beginning May 28, 2019 has been established; the appeal is granted. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Solomon, 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.