Citation Nr: A25035285 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240702-465905 DATE: April 16, 2025 ORDER Payment or reimbursement of medical expenses incurred on February 4, 2024, at Trinity Medical Center (TMC) is denied. FINDING OF FACT The only expenses of the February 4, 2024, emergency treatment at TMC unpaid by the Veteran's private insurance and claimed by the Veteran for Department of Veterans Affairs (VA) reimbursement purposes, is a $120 copayment. CONCLUSION OF LAW The criteria for payment or reimbursement of medical expenses incurred on February 4, 2024, at TMC are not met. 38 U.S.C. § 1725; 38 C.F.R. §§ 17.1000-1008. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1967 to April 1969. This appeal before the Board of Veterans' Appeals (Board) was initiated by a July 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), in which the Veteran disagreed with a decision denying payment or reimbursement of medical expenses incurred February 4, 2024, at TMC, and elected the Hearing docket. The record shows that a decision denying such benefits was issued by the VA Veterans Health Administration, who is the agency of original jurisdiction (AOJ), in April 2024. A Board hearing was held in February 2025 before the undersigned Veterans Law Judge. As the transcript of the proceeding reflects, the Veteran waived the 90-day period following the hearing during which he could submit additional evidence in support of his appeal. 38 C.F.R. § 20.300(b). As such, the Board will proceed to adjudicate this matter. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Factual Background The Veteran received emergency medical treatment at TMC on February 4, 2024. The AOJ issued the Veteran a decision in February 2024 rejecting a claim for payment of the expenses of such treatment on the basis that "[m]edical records have not been received or are insufficient to determine decision of payment," and advising the Veteran to, "[i]f applicable, please submit the ER Report, H&P notes, progress notes, and discharge summary within 1 year." A December 2024 internal VA Report of Contact further indicates that, after reviewing the Veteran's claim, it was determined VA never received a facility bill or medical records to review for the February 4, 2024, episode of care in question, and that records showed that the Veteran had other insurance, so TMC may have filed claims with Veteran's other insurance rather than VA. As reflected in his February 2025 testimony before the Board, most of the expenses of the February 4, 2024, treatment was paid by the Veteran's private health insurance, and the Veteran is seeking reimbursement of the $120 out-of-pocket copayment expense that remains. The Veteran's representative brought to the hearing an explanation of benefits from the Veteran's private insurer, which he requested be incorporated into the hearing manuscript, reflecting that $13,197 had been paid by the Veteran's private insurer for the February 4, 2024, expenses, and that what remained unpaid was the $120 copayment. Legal Criteria The record does not reflect that, at the time of the treatment in question, the Veteran was permanently and totally disabled due to service-connected disability or disabilities; that his treatment was for any service-connected disability or for any disability associated with and held to be aggravating a service-connected disability; or that his treatment was for any injury or illness contracted in the course of a rehabilitative program. Therefore, the Veteran is not eligible for payment or reimbursement under 38 U.S.C. § 1728 in this case. See 38 U.S.C. § 1728; 38 C.F.R. § 17.120. However, 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. 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," and 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. 38 U.S.C. § 1725(c)(2), (4)(A), (B); see also 38 C.F.R. § 17.1002(f). In any case, VA may not reimburse a Veteran for any copayment or similar payment, including a deductible, for which the Veteran is responsible under a health-plan contract with a third party. 38 U.S.C. § 1725 (c)(4); see also 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). Payment or reimbursement of medical expenses incurred on February 4, 2024, at TMC is denied. By the Veteran's own contentions, and as reflected in the explanation of benefits incorporated into the February 2025 Board hearing manuscript, the only expenses of the February 4, 2024, emergency treatment at TMC unpaid by the Veteran's private insurance and claimed by the Veteran for VA reimbursement purposes, is the $120 copayment for the services. As such, VA is prohibited by 38 U.S.C. § 1725 from reimbursing this expense under its provisions allowing for payment or reimbursement of non-VA emergency care. See 38 U.S.C. § 1725(c)(4)(D); 38 C.F.R. § 17.1005(a)(5). As a final matter, the Board notes the Veteran's arguments made in his July 2024 appeal that, following his admission to the TMC emergency room, he did not notify VA within 72 hours because he was under concussion protocol, was not himself, and was confused. He and his representative reiterated this point at his February 2025 Board hearing, and he testified that he contacted VA soon after and provided VA with all necessary information from TMC. The Veterans Community Care Program (VCCP), authorized by 38 U.S.C. § 1703 and implemented under 38 C.F.R. §§ 17.4000 through 17.4040, "establishes when a covered veteran may elect to have VA authorize an episode of care for hospital care, medical services, or extended care services from an eligible entity or provider." 38 C.F.R. § 17.4000. The VCCP is a program under which VA was directed to enter into contracts to establish a network of non-VA healthcare providers to provide sufficient access to medical services. 38 U.S.C. § 1703(h). This included contracting with third-party administrators (TPAs) to process claims for compensation for the medical services provided by the in-network non-VA healthcare providers. 38?U.S.C. §?1703D(g)(1). The process for billing for the medical services are governed by the contractual agreements that such healthcare providers entered into with VA to be a Community Care Network provider. 38?U.S.C. §?1703D(a)-(g), (i); 38 C.F.R. §§ 17.4030, 17.4035. Pursuant to the regulations implementing 38 U.S.C. § 1703, "VA may authorize emergency treatment after it has been furnished to a covered veteran" by an eligible entity or provider when such treatment was not previously authorized "if the covered veteran, someone acting on the covered veteran's behalf, or the eligible entity or provider notifies VA within 72-hours of such care or services being furnished and VA approves the furnishing of such care or services." 38 C.F.R. § 17.4020(c)(1), (2); see also 84 Fed. Reg. 26288-89, (Jun. 5, 2019) (declining to make changes "to create exceptions to the 72-hour rule in §?17.4020(c)(2) as proposed," including for circumstances where "a covered veteran seeking emergency care [is] in a compromised medical state," and clarifying "that if the 72-hour window is not met, VA will consider any claims for reimbursement of the costs of the emergency treatment under other authorities, specifically sections 1725 and 1728, which authorize reimbursement of certain non-VA emergency treatment"). However, to the extent that the Veteran contends that VA should retroactively authorize payment for the February 4, 2024, treatment at TMC under § 1703, or should have authorized payment previously, and therefore that the care should be or should have been paid under 38 U.S.C. § 1703 and 38 C.F.R. § 17.4020(c), the Veteran would be contesting the decision whether to furnish services through a non-VA provider under 38 U.S.C. § 1703(d) (Conditions under which care is required to be furnished through non-Department providers) and/or (e) (Conditions under which care is authorized to be furnished through non-Department providers); see also 38 C.F.R. § 17.4010. Such decisions are statutorily barred from being appealed to the Board. See 38 U.S.C. § 1703(f) ("The review of any decision under subsection (d) or (e) shall be subject to the Department's clinical appeals process, and such decisions may not be appealed to the Board of Veterans' Appeals"). As the Board has no authority to review any such contentions, they would provide no legal basis for payment. Given the above, unfortunately, there is no legal basis on which to grant the Veteran's claim. Accordingly, payment or reimbursement of medical expenses incurred on February 4, 2024, at TMC must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that where the law is dispositive of the claim, the claim should be denied because of lack of entitlement under the law). STEVEN D. REISS 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.