Citation Nr: 25005402 Decision Date: 04/22/25 Archive Date: 04/22/25 DOCKET NO. 15-14 563A DATE: April 22, 2025 ORDER The claim for entitlement to payment or reimbursement of unauthorized medical expenses incurred as a result of treatment by Central Oregon Radiology Associates on May 25, 2014, (Claim ID #2056475) is denied. The claim for entitlement to payment or reimbursement of unauthorized medical expenses incurred as a result of treatment by Central Oregon Radiology Associates on May 25, 2014, (Claim ID #2056476) is denied. The claim for entitlement to payment or reimbursement of unauthorized medical expenses incurred as a result of treatment by St. Charles Bend Hospital during the period from May 25 to May 26, 2014, (Claim ID #679057) is denied. The claim for entitlement to payment or reimbursement of unauthorized medical expenses incurred as a result of treatment by Central Oregon Emergency Physicians on May 25, 2014, (Claim ID #2096757) is denied. FINDINGS OF FACT 1. No payable expenses for the May 25, 2014, episode of care at Central Oregon Radiology Associates (Claim ID #2056475 and Claim ID #2056476) have been established by the record. 2. No payable expenses for the May 25, 2014, to May 26, 2014, episode of care at St. Charles Bend Hospital (Claim ID #679057) have been established by the record. 3. No payable expenses for the May 25, 2014, episode of care at Central Oregon Emergency Physicians (Claim ID #2096757) have been established by the record. CONCLUSIONS OF LAW 1. The criteria for entitlement to payment or reimbursement of unauthorized medical expenses incurred as a result of treatment by Central Oregon Radiology Associates on May 25, 2014, (Claim ID #2056475) have not been met. 2. The criteria for entitlement to payment or reimbursement of unauthorized medical expenses incurred as a result of treatment by Central Oregon Radiology Associates on May 25, 2014, (Claim ID #2056476) have not been met. 3. The criteria for entitlement to payment or reimbursement of unauthorized medical expenses incurred as a result of treatment by St. Charles Bend Hospital during the period from May 25 to May 26, 2014, (Claim ID #679057) have not been met. 4. The criteria for entitlement to payment or reimbursement of unauthorized medical expenses incurred as a result of treatment by Central Oregon Emergency Physicians on May 25, 2014, (Claim ID #2096757) have not been met. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1971 to February 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from June and July 2014 decisions in which claims for payment or reimbursement of unauthorized medical expenses incurred as a result of treatment at or by Central Oregon Emergency Physicians, Central Oregon Radiology Associates, and St. Charles Bend Hospital on May 25, 2014, and May 26, 2014, were denied due to the Veteran having other health insurance coverage. In January 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge; a transcript of the hearing is of record. This appeal was previously before the Board in March 2021, March 2023, and January 2024, at which times the claims were remanded to the Agency of Original Jurisdiction (AOJ) for further evidentiary development. The Board finds the remand directives have been substantially complied with, and the appeal can move forward for adjudication. Stegall v. West, 11 Vet. App. 268, 271 (1998). Medical Expense Reimbursement 1. The claim for entitlement to payment or reimbursement of unauthorized medical expenses incurred as a result of treatment by Central Oregon Radiology Associates on May 25, 2014, (Claim ID #2056475) is denied. 2. The claim for entitlement to payment or reimbursement of unauthorized medical expenses incurred as a result of treatment by Central Oregon Radiology Associates on May 25, 2014, (Claim ID #2056476) is denied. 3. The claim for entitlement to payment or reimbursement of unauthorized medical expenses incurred as a result of treatment by St. Charles Bend Hospital during the period from May 25 to May 26, 2014, (Claim ID #679057) is denied. 4. The claim for entitlement to payment or reimbursement of unauthorized medical expenses incurred as a result of treatment by Central Oregon Emergency Physicians on May 25, 2014, (Claim ID #2096757) is denied. 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. Since the Veteran's non-VA medical treatment on the dates of service in question were for a nonservice-connected disorder and there is no service-connected disability that is total and permanent in nature, the only possible route to entitlement to unreimbursed medical expenses in this case stems from 38 U.S.C. § 1725, the Veterans Millennium Health Care and Benefits Act. Under this Act, payment, or reimbursement of non-VA emergency medical services for nonservice-connected disorders for veterans without insurance is available if certain conditions are met. As such, the following conditions that must be met include: (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) 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; (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. VA may not, however, 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); see Wolfe v. McDonough, 28 F.4th 1348, 1356-57 (Fed. Cir. 2022) (holding that, under § 1725(c)(4)(D), a deductible is a "similar payment" to a copayment, but coinsurance is not). In its March 2021 remand, the Board noted that pursuant to Staab v. McDonald, 28 Vet. App. 50 (2016) and Wolfe v. Wilkie, 32 Vet. App. 1 (2019), VA payment or reimbursement is not precluded as a matter of law in cases where an appellant is seeking payment or reimbursement and has partial coverage, such as private insurance or Medicare, for the medical care at issue. In the March 2021 decision, the Board could not decide the Veteran's claims, as it remained unclear what, if any, expenses for the treatment from May 25 to May 26, 2014, at St. Charles Bend Hospital were paid by Medicare or any other non-VA health plan contract. Therefore, the Board directed that the AOJ specifically determine the remaining amount (if any) that is reimbursable by VA (which would include expenses as part of a deductible or coinsurance payment, but not copayment), and readjudicate the claim. Following the March 2021 Board remand, no response or evidence was received from the Veteran or his representative, and the AOJ found that the evidence the Board sought in the remand could not be obtained. The AOJ denied the Veteran's claims again in an October 2022 Supplemental Statement of the Case (SSOC) on the basis that VA lacked the evidence necessary to satisfy the reimbursement criteria pursuant to 38 U.S.C. § 1725(c)(4)(D) and 38 C.F.R. § 17.1005(a)(5). The claims returned to the Board and in March 2023, the Board again remanded the appeal. Pursuant to the March 2023 Board decision, the AOJ was directed to solicit from the Veteran any evidence, including an Explanation of Benefits (EOB) from his insurance company detailing the amount of any unreimbursed medical expenses that he has paid or still owes (after the coverage) with respect to his treatment at or by Central Oregon Emergency Physicians, Central Oregon Radiology Associates, and St. Charles Bend Hospital on May 25 and 26, 2014. The directives specifically requested the AOJ, after completing the above development, readjudicate the appeal in accordance with the Court's decision in Staab, payment limitations in 38 U.S.C. § 1725(c)(4)(D) on reimbursing copayments and deductibles, and the provisions of 38 C.F.R. § 17.1005. Following the March 2023 Board remand, the record reflects that the AOJ sent correspondence to St. Charles Bend Hospital, the Veteran, Central Oregon Radiology Associates, and Central Oregon Emergency Physicians soliciting submission of any EOBs for the episode of care at issue. No responses were received. In September 2023, the AOJ issued a SSOC which again denied the Veteran's claims. The AOJ stated that VHA is unable to make a payment on the claims because the Veteran has other health insurance and VA can only pay co-insurance as a secondary payer if an EOB is on file. The AOJ noted that VA has made multiple requests for the missing EOBs, but there was no available EOBs from the Veteran's primary insurance on file. In October 2023, a supervisory Legal Administrative Specialist (LAS) for VHA created a Missing Documentation memorandum for the record, which reflects that the EOBs for St. Charles Bend Hospital, Central Oregon Emergency Physicians, and Central Oregon Radiology Associates for services rendered from May 25, 2014, through May 26, 2014, could not be located. Most recently, in January 2024, the Board again remanded the Veteran's claims. In the remand, the Board again directed the AOJ to undertake efforts to obtain copies of any relevant EOBs pertaining to the Veteran's May 25, 2014, and May 26, 2014, episode of care from the Veteran's primary insurance company (Medicare), or if necessary, the non-VA providers. Additionally, in the January 2024 Board decision, the Board again invited the Veteran to submit any information he had regarding the amount he paid and any correspondence from Medicare related to the episode of care on appeal and the payments issued by Medicare. The Veteran was advised reimbursement cannot be granted until this information is of record and was reminded that VA's duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). The evidence of record reflects that the AOJ complied with the directives from the January 2024 Board remand, but any EOB or any payment information related to the May 25, 2014, through May 26, 2014, episode of care was not able to be obtained. The Veteran did not submit any correspondence related to the payments he made, or the payment made by Medicare while the appeal was on remand; further the non-VA providers did not have access to EOBs for the episode of care at issue. Correspondence was sent to the Veteran in February and March 2024 requesting the EOB; the AOJ also contacted Medicare in February 2024 but was unable to obtain the EOB without authorization from the Veteran for release, which was not provided. Further, the AOJ contacted Central Oregon Radiology Associates, Central Oregon Emergency Physicians, and St. Charles Bend Hospital who reported they were also unable to obtain the EOB. See February 2024 correspondence; March 2024 correspondence: April 2024 correspondence. In the May 2024 SSOC, the AOJ advised that in order to calculate payment, VA requires an EOB from the Veteran's primary insurance. The Veteran was advised this information was needed multiple times throughout the pendency of this appeal, whether via correspondence or in the numerous Board decisions. No payment information has been received from the Veteran. Additionally, the AOJ contacted Medicare and the non-VA providers for the EOBs and concluded they were unable to obtain the documentation. Therefore, the Board finds VA complied with their duty to assist in this matter. As discussed above, in cases where an appellant seeking payment or reimbursement has partial coverage, such as private insurance or Medicare for the medical care at issue, VA payment or reimbursement is not precluded as a matter of law. However, in order for the Board to make an informed determination on the episode of care on appeal, the EOB and payment information from Medicare and any other payment made must be obtained. Unfortunately, no additional information was submitted by the Veteran regarding the payments he made nor was he able to provide payment information from Medicare. The AOJ also attempted to obtain the Medicare EOB or payment information and exhausted all efforts to do so and also could not obtain the EOB. In sum, the record contains no EOB or other documentation of a balance payable by VA, after payment had been made by the Veteran's primary health insurer. As no payable expenses for the May 25, 2014, through May 26, 2014, episode of care at St. Charles Bend Hospital, including treatment by Central Oregon Radiology Associates and Central Oregon Emergency Physicians, have been established by the record, payment or reimbursement of such expenses must, unfortunately, be denied. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. M. Lowman, 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.