Citation Nr: 1801294 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 15-27 220A ) DATE ) ) On appeal from the Department of Veterans Affairs Region 3 V16 Consolidated Fee Unit in Flowood, Mississippi THE ISSUE Entitlement to payment or reimbursement for medical expenses incurred on July 28, 2014, in the emergency department of a private hospital. [Additional pending claims for service connection and increased disability ratings will be addressed in a separate decision.] REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The Veteran appellant had active service in the United States Air Force from August 1992 to August 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 decision issued by the Department of Veterans Affairs (VA) Region 3 V16 Consolidated Fee Unit (CFU) in Flowood, Mississippi wherein the appellant's claim of entitlement to medical payment/reimbursement for private emergency room treatment rendered on July 28, 2014, was denied. The issue of entitlement to payment or reimbursement for medical expenses incurred on July 26, 2014, in the emergency department of a private hospital has been raised by the record but has not been adjudicated by the Agency of Original Jurisdiction (AOJ) which only addressed services provided on July 28, 2014. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). In addition to the paper claims file, there is an electronic file associated with the claim. The Board has reviewed both the electronic file and the paper claims file. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Veteran asserts that she is entitled to compensation for medical expenses incurred due to emergency treatment for renal colic on the right side on July 28, 2014. The April 2015 decision from the Region 3 V16 Consolidated Fee Unit (CFU) in Flowood, Mississippi indicates that the appellant's claim was denied because she had third party insurance coverage that was primary to her VA coverage. In the June 2015 Statement of the Case (SOC), the Region 3 V16 CFU in Flowood, Mississippi stated that the appellant had been treated for a nonservice-connected condition and that she had other primary health insurance. Thus, the claim was denied based on the appellant having a third-party insurance contract (i.e., an employment-related policy). In a precedential decision, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 17.1002 (f), which provides that a veteran must not have coverage "in whole or in part" under a health-plan contract for the emergency treatment as a condition of eligibility for VA reimbursement of unauthorized medical expenses, was invalid because it was inconsistent with the current version of 38 U.S.C. § 1725, the statutory section implemented by 38 C.F.R. § 17.1002 of the regulations. See Staab v. McDonald, 28 Vet. App. 50 (2016). In short, the Court found that partial coverage under a health-plan contract for the non-VA emergency treatment at issue in that case was not a bar to eligibility for VA reimbursement of any remaining uncovered balance under 38 U.S.C. § 1725. See id. (vacating and reversing a determination by the Board that partial Medicare coverage was a bar to section 1725 benefits, and remanding the matter for readjudication). To the extent that section 17.1002 of the regulations provides otherwise, it has been held invalid by the Court. Id. Consequently, it appears that the basis for the denial of medical expenses associated with private emergency room treatment provided on July 28, 2014 is not valid and the Board is unable to address the other merits of the claim in this case, as no other elements of the claim were addressed by the AOJ in its decision. Because the decision by the Region 3 V16 CFU in Flowood, Mississippi relies on the regulation invalidated in the Court's Staab decision, remand is warranted to readjudicate the appellant's claim in light of this development. 28 Vet. App. at 50. In addition, because it is not clear to the Board the amount owed by the appellant, further development is also required. In particular, it is not delineated in the evidence of record how much of the amounts not paid by the appellant's insurance company reflect copays and/or deductibles. As the Explanation of Benefits notice from the appellant's insurance company for services provided by the private emergency room on July 28, 2014 is not of record, the Board finds that remand to obtain this document is necessary to accurately determine whether any of the claimed amount is a deductible or a copayment. See 38 U.S.C. § 1725 (c)(4)(D) which lists certain payment limitations, and those payment limitations were not set aside by the Court in Staab. (reimbursement by VA will not be made "for any copayment or similar payment that the veteran owes the third party or for which the veteran is responsible under a health-plan contract"). The related implementing regulation, 38 C.F.R. § 17.1005(f), reads that "VA will not reimburse a claimant under this section for any deductible, copayment, or similar payment that the veteran owes the third party." To ensure that VA has met its duty to assist in developing the facts pertinent to the claim on appeal and to afford full procedural due process, the case is REMANDED for the following: 1. Assure that all notification and development action required by 38 U.S.C. §§ 5102, 5103, and 5103A, the regulations found at 38 C.F.R. § 3.159 and any other applicable legal precedent has been completed. 2. Ask the Veteran to obtain and submit the Explanation of Benefits from her insurance company for the medical care she received at a private emergency room in July 2014. If possible, assist the Veteran in obtaining this document. 3. Then, readjudicate the claim for reimbursement of medical expenses incurred at a private emergency room on July 28, 2014, in accordance with the holding of Staab v. McDonald, 28 Vet. App. 50 (2016). The readjudication must reflect consideration of the August 4, 2015 treatment note by a VA urologist to the effect that if the Veteran experienced renal colic she should go to the nearest emergency room as VA had no emergency room capability in the area closer than Biloxi, MS which would be too far to travel with renal colic. 4. If the benefit sought on appeal is not granted, the Veteran and her representative must be furnished an appropriate Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include the applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time must be allowed for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. _________________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b).