Citation Nr: 26002002 Decision Date: 02/12/26 Archive Date: 02/12/26 DOCKET NO. 13-25 296A DATE: February 12, 2026 ORDER Payment or reimbursement of medical expenses incurred at Florida Hospital on September 8, 2012, is denied. FINDING OF FACT The Veteran is not financially liable for any of the expenses of the September 8, 2012, emergency treatment at Florida Hospital. CONCLUSION OF LAW The criteria for payment or reimbursement of medical expenses incurred at Florida Hospital on September 8, 2012, are not met. 38 U.S.C. §§ 1725, 5107; 38 C.F.R. §§ 17.1000-1008. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1995 to June 2003. This appeal is before the Board of Veterans' Appeals (Board) from an October 2012 decision of the Department of Veterans Affairs (VA) Veterans Health Administration (VHA). The Board remanded this matter to the agency of original jurisdiction (AOJ) in August 2018. Medical Reimbursement The Veterans Millennium Health Care and Benefits Act, implemented at 38 U.S.C. § 1725 and 38 C.F.R. §§ 17.1000-1008, 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. Payment or reimbursement under 38 U.S.C. § 1725 for emergency treatment will be made only if certain conditions are met, listed under 38 C.F.R. § 17.1002. One such condition for payment or reimbursement is that the Veteran is financially liable to the provider of emergency treatment for that treatment. 38 U.S.C. § 1725(b)(1), (3); 38 C.F.R. § 17.1002(e). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the claimant is given the benefit of the doubt. 38 U.S.C. § 5107. Payment or reimbursement of medical expenses incurred at Florida Hospital on September 8, 2012, is denied. The Veteran received emergency care at Florida Hospital on September 8, 2012, for vaginal bleeding and sharp pelvic pain. Prior to receiving such care, she contacted VA and, after describing her symptoms, was instructed by the VA triage nurse that her condition was urgent and that she needed medical attention immediately or her condition might worsen. She was told that she should go to an emergency room (ER) immediately. The Veteran agreed to go to the nearest ER with her friend. In its August 2018 remand, the Board noted the following: The agency of original jurisdiction (AOJ) denied the Veteran's claim on the sole basis that she was found to have had insurance that would pay the whole or part of the visit. Specifically, she was determined to have insurance under United Healthcare that was active for the date and time of the ER visit in question. However, subsequent to the AOJ's decision, the United States Court of Appeals for Veterans Claims (Court) held that the regulatory provision under which the AOJ denied the Veteran's claim - that denied coverage under § 1725 where the Veteran had coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the emergency treatment - was invalid. See Staab v. McDonald, 28 Vet. App. 50, 55 (2016). Consequently, VA changed its regulation to conform to the Court's interpretation, so that a Veteran would only be barred from benefits under § 1725 where the Veteran has coverage under a health-plan contract that would fully extinguish the medical liability for the emergency treatment. See 38 C.F.R. § 17.1002(f); 83 FR 974, 979 (January 9, 2018). Nonetheless, 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." 38 U.S.C. § 1725(c)(2); see also 38 C.F.R. § 17.1002(f). 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. In any case, VA may not 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). Essentially, VA will reimburse a Veteran for that portion of expenses not covered by a health-plan contract. See Staab, 28 Vet. App. at 55. In the instant case, the AOJ noted that the Veteran had insurance under United Healthcare that was active for the date and time of the ER visit in question. However, it is unclear from the record exactly what non-VA health coverage the Veteran had at the time of her September 8, 2012, treatment at Florida Hospital; whether any such coverage did, or would have, reimbursed any part of the expenses of such treatment and, if so, to what extent; what attempts were made by the Veteran for reimbursement from any such health-plan coverage, and whether the Veteran or treatment provider had exhausted without success all claims and remedies reasonably available against a third party for payment of her treatment; and what portion of expenses incurred at Florida Hospital on September 8, 2012, were not covered by a health-plan contract, not including any copayment or similar payment for which the Veteran is responsible under a health-plan contract with a third party. Therefore, the nature of the Veteran's coverage under any health-plan contract must be clarified. The Board therefore requested that the AOJ clarify, on remand: what non-VA health coverage the Veteran had at the time of her September 8, 2012, treatment at Florida Hospital; whether any such coverage did, or would have, reimbursed any part of the expenses of such treatment and, if so, to what extent; what attempts were made by the Veteran for reimbursement from any such health-plan coverage, and whether the Veteran or treatment provider had exhausted without success all claims and remedies reasonably available against a third party for payment of her treatment; and what portion of expenses incurred at Florida Hospital on September 8, 2012, were not covered by a health-plan contract, not including any copayment or similar payment for which the Veteran is responsible under a health-plan contract with a third party. The AOJ was then to readjudicate the appeal. In a supplemental statement of the case (SSOC) issued to the Veteran in September 2023, the AOJ documented making contact with a customer service representative for Florida Hospital in April 2023, who informed the AOJ personnel that there was a zero balance on the Veteran's account and a zero balance patient responsibility. The SSOC continued to deny the Veteran's claim, noting that the Veteran had carried non-VA insurance at the time of the episode of care and that, per the provider, she had a zero balance owed on the account, with a zero balance patient responsibility. Therefore, according to the AOJ, "the development of this claim will not change the outcome," and "VA cannot consider this claim for VA payment, as by federal law, our office has no authority to consider payment on this claim." It was noted that the Veteran would "be given 30 days from the date of the SSOC to respond to the Supplemental Statement of the Case to offer her the opportunity to respond," and that if the AOJ did "not receive anything further from her" it would return the case to the Board. There is no indication in the record that the Veteran responded to the AOJ. The Board notes that the record contains no documentation of any contact between the AOJ and Florida Hospital, outside of the information contained in the September 2023 SSOC. However, it is presumed that government officials have properly discharged their official duties. Clear evidence to the contrary is required to rebut this "presumption of regularity." Ashley v. Derwinski, 2 Vet. App. 307 (1992). The presumption of regularity applies to procedures of a VA AOJ. See Mindenhall v. Brown, 7 Vet. App. 271 (1994). On being issued the September 2023 SSOC, the Veteran did not respond, and has not disputed the AOJ's account of its April 2023 contact with Florida Hospital or the facts found in that SSOC, including that she is not financially liable for any expenses of the September 8, 2012, treatment at Florida hospital. Given the available information, the Board presumes the information regarding the AOJ's contact with Florida Hospital contained in the September 2023 SSOC is accurate. In an October 2024 informal hearing presentation, the Veteran's representative asserted that payment or reimbursement of the September 8, 2012, medical expenses pursuant to 38 U.S.C. § 1725 is warranted, as the non-VA treatment in question was for a medical emergency. However, as discussed above, whether September 8, 2012, treatment at Florida Hospital was for a medical emergency is not disputed; the record shows that it was. The issue is whether the Veteran is financially liable for any of the expenses of such treatment. The available record reflects that she is not. In this regard, to the extent that the AOJ did not fully comply with the Board's August 2018 remand instructions, the Board finds such noncompliance not to be prejudicial, as no such development has a reasonable possibility of substantiating the Veteran's claim. Given the above, the evidence weighs persuasively against a finding that the Veteran is financially liable for any of the expenses of the September 8, 2012, emergency treatment at Florida Hospital. Accordingly, payment of, or reimbursement for, medical expenses incurred at Florida Hospital on September 8, 2012, is denied. As a final matter, if the Veteran is able to identify or submit new and relevant evidence, such as evidence of her financial liability for any of the expenses of the September 8, 2012, emergency treatment at Florida Hospital, to include evidence that she paid for any such services herself, she may file a Supplemental Claim (VA Form 20-0995) and submit or identify such new and relevant evidence. 38 C.F.R. § 3.2501. If any newly submitted evidence from the Veteran is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. New evidence is evidence not previously part of the actual record before agency adjudicators, and relevant evidence is information that tends to prove or disprove a matter at issue in a claim. 38 C.F.R. § 3.2501(a)(1). Specific instructions for filing a Supplemental Claim are included with this decision. JONATHAN B. KRAMER 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.