Citation Nr: 21013345 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 15-22 877A DATE: March 9, 2021 REMANDED Entitlement to payment or reimbursement of medical expenses incurred from July 14 to July 22, 2014, at Penrose-St. Francis Hospital (PSFH) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1990 to January 2000, January 2003 to December 2004, and April 2009 to June 2010. This appeal is before the Board of Veterans’ Appeals (Board) from a September 2014 decision of the Department of Veterans Affairs (VA) Veterans Health Administration. In December 2020, the Veteran and his wife testified at a Board hearing before the undersigned Veterans Law Judge. A transcript is included in the claims file.   Entitlement to payment or reimbursement of medical expenses incurred from July 14 to July 22, 2014, at PSFH is remanded. Pursuant to 38 U.S.C. § 1725, under certain circumstances, VA shall reimburse a veteran for the reasonable value of emergency treatment furnished the veteran in a non-Department facility. VA regulations at 38 C.F.R. §§ 17.1000 through 17.1008 detail the requirements under 38 U.S.C. § 1725 that govern VA payment or reimbursement for non-VA emergency services furnished to a veteran for nonservice-connected conditions. 38 C.F.R. § 17.1000. The Veteran received treatment at PSFH from July 14 to July 22, 2014. As reflected in his December 2020 testimony before the Board, he asserts that such treatment was for a medical emergency, as his appendix burst, and he required immediate surgery. He seeks payment or reimbursement of the medical expenses incurred. As reflected in its September 2014 decision and June 2015 statement of the case, the agency of original jurisdiction (AOJ) denied the Veteran’s claim under 38 U.S.C. § 1725 on the basis that he was found to have had non-VA insurance—Blue Cross Blue Shield—at the time of the treatment in question. However, subsequent to the AOJ’s decision, the United States Court of Appeals for Veterans Claims (Court) held that the regulatory provision under which the AOJ denied the Veteran’s claim–that denied coverage under § 1725 where the Veteran had coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the emergency treatment–was invalid. See Staab v. McDonald, 28 Vet. App. 50 (2016). Consequently, VA changed its regulation to conform to the Court’s interpretation, so that a Veteran would only be barred from benefits under § 1725 where the Veteran does not have coverage under a health-plan contract that would fully extinguish the medical liability for the emergency treatment. See 38 C.F.R. § 17.1002(f); 83 Fed. Reg. 974, 979 (Jan. 9, 2018). Nonetheless, 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). Moreover, in Wolfe v. Wilkie, 32 Vet. App. 1 (2019), the Court invalidated 38 C.F.R. § 17.1005(a)(5)—which precluded VA reimbursement “for any copayment, deductible, coinsurance, or similar payment that the veteran owes the third party or is obligated to pay under a health-plan contract”—finding it contrary to 38 U.S.C. § 1725. Specifically, the Court held “§ 17.1005(a)(5) is not based on a permissible construction of section 1725(c)(4)(D) for two related, but distinct, reasons: (1) It’s inconsistent with Staab’s interpretation of section 1725, and (2) deductibles and coinsurance aren’t ‘similar’ to a copayment (and VA didn’t explain—to defeat arbitrariness—how they’re ‘similar’ to a copayment).” Id. at 51; see also Staab, 28 Vet. App. at 55 (holding that “it is clear from the plain language of [38 U.S.C. § 1725] that Congress intended VA to reimburse a veteran for that portion of expenses not covered by a health-plan contract”). Therefore, while there remains a statutory bar against reimbursement of any copayment (or similar payment) by VA per 38 U.S.C. § 1725(c)(4)(D), there is no permissible regulatory bar against the reimbursement of deductible or coinsurance payments. In light of the Court’s holdings in Staab and Wolfe, the matter on appeal must be remanded for additional development and adjudication by the AOJ. The Veteran and his wife, during his December 2020 Board hearing, testified that, although they had private insurance of Blue Cross Blue Shield through the Veteran’s employer at the time of his July 14 to 22, 2014, treatment at PSFH, such private insurance did not pay any part of the treatment, as they did not file a claim with the private insurance, believing that VA would pay for the treatment.   However, several account statements and bills of record indicate that the Veteran’s providers at PSFH did bill the Veteran’s private insurance, that such insurance paid a significant portion of the expenses incurred from July 14 to 22, 2014, and that Blue Cross Blue Shield was listed by the medical providers as the Veteran’s primary insurance provider. Therefore, on remand, after determining what, if any, expenses for the treatment from July 14 to 22, 2014, at PSFH were paid by Blue Cross Blue Shield or any other non-VA health-plan contract, the AOJ must specifically determine the remaining amount reimbursable by VA. Such reimbursable costs would include expenses incurred as part of a deductible or coinsurance payment, but not copayments. The AOJ should then readjudicate the appeal in accordance with the payment limitations in 38 U.S.C. § 1725(c)(4)(D) on reimbursing copayments, and the still extant provisions of 38 C.F.R. § 17.1005. Also, the claims file currently contains no records of the Veteran’s treatment from July 14 to 22, 2014, at PSFH. The AOJ must make efforts to obtain such records and associate them with the claims file prior to any further consideration of the appeal on the merits by the Board. The matters are REMANDED for the following action: 1. Make reasonable attempts to obtain the records of the Veteran’s treatment from July 14 to 22, 2014, at PSFH including, if necessary, requesting that the Veteran identify and provide authorization for VA to obtain any such records. Associate any such records with the claims file. 2. After determining what, if any, expenses for the treatment in question were paid by Blue Cross Blue Shield or any other non-VA health-plan contract, determine the remaining amount reimbursable by VA. Such reimbursable costs would include expenses incurred as part of a deductible or coinsurance payment, but not copayments. 3. After completing the above and any other necessary development, readjudicate the appeal. If any benefit sought remains denied, provide a supplemental statement of the case to the Veteran and his representative. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Andrew Mack, 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.