Citation Nr: A24029775 Decision Date: 06/06/24 Archive Date: 06/06/24 DOCKET NO. 230527-413960 DATE: June 6, 2024 REMANDED Entitlement to payment or reimbursement of medical expenses incurred on October 1, 2022, from Hamilton County Emergency Medical Services (EMS) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from April 1968 to January 1972. In May 2023, the Board of Veterans' Appeals (Board) received a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) electing the Direct Review docket to review a May 2023 determination by a Veterans Health Administration (VHA) Agency of Original Jurisdiction (AOJ). Therefore, the Board may only consider the evidence of record at the time of the May 2023 AOJ decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. However, because the Board is remanding the claim, any evidence the Board could not consider will be considered by the AOJ in the adjudication of the claim. 38 C.F.R. § 3.103(c)(2)(ii). The Veteran contends he is entitled to reimbursement for the ambulance bill he received for transportation on October 1, 2022. In his VA Form 10182, the Veteran advised that he disagreed with the negative determination as his income did not exceed the maximum annual rate. Specifically, he noted that his income was updated on February 1, 2023. The May 2023 Explanation of Payment (EOP) reflects the Veteran was transported via ambulance to a VA medical facility on October 1, 2022. The AOJ denied the Veteran's reimbursement claim for ambulance transportation on October 1, 2022, under 38 U.S.C. § 111, stating the Veteran's travel was not for a scheduled examination, his travel was not in connection with VA's special disabilities rehabilitation program, and his annual income for the calendar year exceeded the maximum annual rate of VA pension. VA has two legal mechanisms through which it may pay for medical transportation: 38 U.S.C. §§ 111 and 1725. Generally, VA beneficiary travel is a payment for travel expenses incurred in the United States to help Veterans and other persons obtain care or services from the Veterans Health Administration. 38 U.S.C. § 111; 38 C.F.R. § 70.10. A Veteran is eligible for beneficiary travel payments for travel to or from a VA facility or VA-authorized health care facility for the following: 1) treatment for a service-connected disability, regardless of the disability rating; 2) treatment for any disability, provided that the Veteran has a service-connected disability rated at 30 percent or more; 3) a scheduled compensation and pension examination; 4) if the Veteran receives pension under 38 U.S.C. § 1521 ; 5) if the Veteran's annual income does not exceed the maximum annual rate of pension (MAPR) that the Veteran would receive under 38 U.S.C. § 1521 ; or, 6) if, the Veteran is unable to defray the expenses of that travel under certain circumstances. 38 U.S.C. § 111; 38 C.F.R. § 70.10(a). It is unclear whether the Veteran seeks payment for transportation to a VA facility or a non-VA facility. Notably, there are medical treatment records from a non-VA facility dated October 1, 2020, that indicate that the Veteran was treated emergently for sepsis. However, the EOP indicates that the Veteran received transportation to a VA hospital. There are no VA treatment records on file to evaluate the claim properly and to determine under which regulation the claim should be processed. Further, the theory of reimbursement under 38 U.S.C. § 1725 was not addressed in the matter on appeal by the AOJ. 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 where 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 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, where the veteran: is financially liable to the provider of the emergency transportation; does not have coverage under a health-plan contract that would fully extinguish the medical liability for the emergency transportation; 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 is not eligible for reimbursement for any emergency treatment expenses under 38 U.S.C. § 1728. 38 C.F.R. § 17.1003. The AOJ did not properly consider the Veteran's claim under the provisions of 38 U.S.C. § 1725 in the May 2023 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 2023 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, the actual ambulance treatment records and claim for reimbursement of the expenses of such treatment are not of record. As correction of these errors by the AOJ in satisfying its regulatory and statutory duties would have a reasonable possibility of aiding in substantiating the medical reimbursement claim on appeal, the appeal must be remanded for the AOJ to associate such pertinent records with the file, properly adjudicate the Veteran's claim under the provisions of 38 U.S.C. § 1725 and 38 C.F.R. §§ 17.1000 through 17.1008, and provide appropriate notice of the decision under 38 U.S.C. § 5104(b) to the Veteran. The Veteran is notified that under the modernized appeal system, remands do not automatically return to the Board for additional adjudication. Should the Agency of Original Jurisdiction deny the claim in whole or in part and the Veteran wish to continue their appeal before the Board, the Veteran should file an appropriate NOD (VA Form 10182) within the applicable appeal period after the AOJ's readjudication of the claim. The matter is REMANDED for the following action: 1. Obtain and associate all pertinent evidence to the claims file, to include the ambulance records and VA treatment records from the October 1, 2022, episode of care. (Continued on the next page) ? 2. Adjudicate the claim of entitlement to reimbursement of ambulance expenses from October 1, 2022, under all applicable regulations, including 38 U.S.C. § 111, 38 U.S.C. § 1725, and 38 C.F.R. §§ 17.1000-1008. 3. Issue the Veteran a notice of decision on the issue of entitlement to payment of the cost of ambulance transportation on October 1, 2022, 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. § 17.1003. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Schmidt 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.