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Court rules that VA has been shortchanging veterans since 2009

A unanimous three-judge panel of the U.S. Court of Appeals for Veterans Claims struck down a Department of Veterans Affairs (VA) regulation that VA had been relying upon since 2009 to deny reimbursement requests from veterans who incurred emergency medical care costs outside the VA healthcare system.

The Court's decision rebuked the VA, emphasizing that VA's reimbursement regulation became "wholly inconsistent" with the governing statute when Congress amended it in 2009, but thereafter the VA unlawfully "declined to remedy this inconsistency."

The case, Richard W. Staab v. Robert A. McDonald, was brought by the National Veterans Legal Services Program (NVLSP) on behalf of an Air Force veteran who had a heart attack in 2010 and was rushed to a non-VA hospital, where he underwent open heart surgery and incurred approximately $48,000 in emergency medical expenses. Medicare covered a portion of this medical bill, and the veteran sought VA reimbursement for the portion of the medical expenses not covered by Medicare.

"This is a major win for veterans, and their families," said Bart Stichman, joint executive director of NVLSP and one of the attorneys in the case. "Often veterans have to seek emergency medical care outside the VA healthcare system, and for years the VA has refused to reimburse these veterans for any of the expenses incurred simply because secondary insurance covered a portion of the medical bill. This practice has violated federal law since at least 2009. The court's ruling means the VA will have to amend the unlawful regulations it should have amended in 2009 and do right by these veterans. It's not just a win for one veteran. Veterans who have pending claims for reimbursement will benefit. Plus, veterans whose reimbursement requests were turned down years ago may now be able to get paid by claiming that the previous denial contained "clear and unmistakable error."

For many years, the VA denied reimbursement claims for emergency medical care for veterans who had partial or secondary insurance, even though VA was required by federal statute to pay these claims. In 2009, Congress passed the Emergency Care Fairness Act to confirm the congressional intent to require the VA Secretary to step in as a "secondary payer" where other health care insurers, such as Medicare, cover only a portion of the cost of a veteran's emergency treatment.

Even after Congress clarified its intent in 2009, the VA refused to change its regulation to make it consistent with what Congress said. VA continued to deny requests for reimbursement from veterans for emergency medical expenses, if they had other insurance that covered a portion of the medical bill. Oddly, the VA did pay emergency medical expense claims for veterans who had no insurance. The judges at the Court of Appeals for Veterans Claims also ruled the VA's regulation, which had been used for years to deny veterans reimbursement, is invalid, saying in its opinion, "Further, 38 C.F.R. § 17.1002(f) is held invalid and SET ASIDE."

"The court overturned and set aside the VA's own regulation. This means that the Department of Veterans Affairs will be forced to amend its regulations and re-train its staff on the rules, so other veterans who needed emergency medical care outside the VA system are not denied reimbursement, simply because they have partial secondary insurance," said Stichman. "This is a big victory for veterans and their families who have not received the reimbursement that they are legally entitled to for emergency medical expenses."

For veterans who filed reimbursement claims in the past for emergency medical care outside the VA system and were denied because they had partial secondary insurance, the ruling does not require the VA to go back to reopen past reimbursement denials. Stichman believes that the veteran would have to take action to file a new claim and argue that the past denial was based on clear and unmistakable error. Stichman believes that cases currently pending before the VA will directly benefit from the Court's decision. [Source VA Press Release]

As always please see your local County Veterans Service Officer if you have any questions. You can contact your local VSO at (218) 631-7617 or by email at and as always have a great week.