Citation Nr: 22014287 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 18-53 577 DATE: March 12, 2022 ORDER Payment or reimbursement for unauthorized expenses incurred by the Veteran for care provided by Providence St. Mary Medical Center, Walla Walla Washington on August 21, 2015 is granted. FINDING OF FACT 1. On August 21, 2015, the Veteran was treated at the emergency department of Providence St. Mary Medical Center in Walla Walla, Washington, for complaints of mouth pain and burning, making it painful to eat food and drink. 2. At the time of this episode of care, the Veteran was enrolled in the VA healthcare system and had received VA care within the past twenty-four months. He was personally liable for the cost of treatment, less an amount paid by Medicare. 3. At the time of the episode of care, the Veteran's local VA clinic was closed. CONCLUSION OF LAW The criteria for payment or reimbursement for unauthorized expenses incurred by the Veteran for care at Providence St. Mary Medical Center, Walla Walla Washington on August 21, 2015 are met. 38 U.S.C. §§ 1703, 1725, 5107; 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120, 17.121, 17.1002. REASONS AND BASES FOR FINDING AND CONCLUSION Introduction The Veteran served on active duty in the Army from April 1968 to November 1970. This case comes before the Board on appeal from a November 2015 decision of a VA Medical Center in Portland, Oregon. The Veteran passed away in November 2015. The appellant is the Veteran's surviving spouse, who has been substituted for him in this appeal. See 38 U.S.C. § 5121A (a)(1). Entitlement to Payment or Reimbursement for the Cost of Non-VA Care VA will pay for or reimburse the cost of unauthorized care at non-VA facilities for veterans who are enrolled in the VA health care system and have received VA care within the last twenty-four months and who are personally liable for non-VA treatment costs, regardless of whether the treated condition is a service-connected condition or related thereto, under the following conditions: (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; (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; (d) The veteran does not have coverage under a health-plan contract that would fully extinguish the medical liability for the emergency treatment; (e) 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 U.S.C. § 1725; 38 C.F.R. § 17.1002. Here, medical treatment records reflect that the Veteran presented to the emergency department of Providence St. Mary Medical Center in Walla Walla, Washington on the evening of August 21, 2015 with complaints of mouth pain and burning that made it painful to eat. See August 2015 Private Treatment Record. The Veteran reported that he had tried to go to the local VA clinic, but it was closed. He also reported that he had recently finished a course of amoxicillin, after which his mouth condition had worsened. He was placed back on amoxicillin and directed to follow up with his regular doctor. In a November 2015 notice of disagreement (NOD), the appellant's daughter, writing on behalf of the appellant, stated that the Veteran had hepatitis C and was "an insulin dependent diabetic" and that she believed that if he had not gone to the emergency room on August 21, 2015, "he would have had a major setback" due to his inability to eat or stay hydrated. The medical records confirm the Veteran's diagnoses of hepatitis C and diabetes mellitus. See August 2015 PTR. In light of the Veteran's conditions and the testimony of his widow and daughter, the Board finds that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to the Veteran's health. Therefore, the Board finds that the condition for which the Veteran sought treatment on August 21, 2015 was an emergency and that a VA or federal facility was not feasibly available. Accordingly, payment or reimbursement for unauthorized expenses incurred by the Veteran for care at Providence St. Mary Medical Center, Walla Walla Washington on August 21, 2015 is warranted. Veteran's Partial Medicare Coverage The appellant's claim was denied on the grounds that the Veteran's August 21, 2015 non-VA treatment was partially covered by third party insurance, specifically Medicare. This reasoning reflects the state of the law before April 8, 2016. However, following the Court of Appeals for Veterans Claims (CAVC) decision in Staab v. McDonald, 28 Vet. App. 50, 55 (2016), for claims pending as of April 8, 2016, 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 that would fully extinguish his or her liability for the emergency treatment. See 38 C.F.R. § 17.1002(f); 83 Fed. Reg. 974 (Jan. 9, 2018) ("VA can only apply the new § 17.1002(f) to claims pending on or after April 8, 2016."). Here, the appellant's claim was denied in November 2015, but her NOD was received within a year of the denial, and thus her claim has been pending from that time until now. Moreover, the Veteran's Medicare coverage only partially extinguished his liability for the cost of his emergency treatment. Therefore, payment or reimbursement is still warranted for the remainder of the cost. S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Timmerman, Associate 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.