Citation Nr: 22012305 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 17-36 211A DATE: March 3, 2022 REMANDED Entitlement to payment or reimbursement for the cost of medical treatment received at Flagler Hospital on June 21, 2016 is remanded. REASONS FOR REMAND The Veteran had active service from April 1993 to February 1996. The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in October 2021; a transcript is of record. Entitlement to payment or reimbursement for the cost of medical treatment received at Flagler Hospital on June 21, 2016 is remanded. 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). 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 regulation, 38 C.F.R. § 17.1002(f), was amended in January 2018 to reflect the Court's holding in Staab. Under the amended version of 38 C.F.R. § 17.1002(f), payment or reimbursement under 38 U.S.C. § 1725 for emergency treatment 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 rule 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). A financial statement from Flagler Hospital shows that the original charges for the June 21, 2016 treatment were $3,361.24, that there was a payment by a private insurer, Aetna, and an adjustment to the amount owed, and that the balance owed is $300.00. It is not clear from the record if the balance owed is a copayment. On remand, an insurance statement from Aetna, such as an explanation of payment, must be obtained to clarify this. The matters are REMANDED for the following action: Perform the necessary development to obtain an insurance statement from Aetna, such as an explanation of payment, for the June 21, 2016 treatment at Flagler Hospital in order to determine whether the balance owed is a copayment, coinsurance, or deductible. H.M. WALKER 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.