Citation Nr: 18140622 Decision Date: 10/03/18 Archive Date: 10/03/18 DOCKET NO. 13-34 109A DATE: October 3, 2018 ORDER Payment or reimbursement for that part of medical expenses, for which the Veteran remains liable, other than any deductible, copayment, or similar payment owed under his third-party medical coverage, incurred due to non-VA medical care from February 27, 2013, through March 19, 2013, at Wellington Regional Medical Center (WRMC), West Palm Hospital (WPH), and ancillary non-VA medical facilities, is granted. FINDINGS OF FACT 1. The Veteran received emergency and continued non-emergency treatments from WRMC, WPH, and ancillary non-VA medical facilities from February 27, 2013, through March 19, 2013. 2. On March 5, March 8, and March 12, 2013, WPH made reasonable attempts to transfer the Veteran to a VA facility, but was informed that there was no available space for the Veteran at those times. 2. The Veteran’s coverage under third-party insurance paid at least a portion of the private medical expenses incurred at WRMC, WPH, and associated ancillary non-VA medical facilities, from February 27, 2013, through March 19, 2013; and he is liable for the remainder of the costs. CONCLUSION OF LAW The criteria for establishing entitlement to reimbursement or payment of that part of private medical expenses incurred at WRMC, WPH, and ancillary non-VA medical facilities, for which the Veteran remains liable, other than any deductible, copayment, or similar payment owed under his third-party medical coverage, are met. 38 U.S.C. § 1725 (2012); 38 C.F.R. §§ 17.1002, 17.1005 (2017); Staab v. McDonald, 28 Vet. App. 50 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1970 to August 1974. This appeal to the Board of Veterans’ Appeals (Board) is from a December 2013 decision by the Department of Veterans Affairs Medical Center (VAMC) in West Palm Beach, Florida. At the Veteran’s request, in April 2015, he was scheduled for a Board hearing, but he failed to appear. His request is considered to be withdrawn. Entitlement to payment or reimbursement for expenses incurred due to non-VA medical care from February 27, 2013, through March 19, 2013 at WRMC, WPH, and associated non-VA medical facilities The Veteran contends that reimbursement or payment of that portion of unauthorized medical expenses that he incurred at WRMC, WPH, and ancillary non-VA medical facilities is warranted. Service connection has not been established for any disability. See 38 U.S.C. § 1725 (2012). The record reflects that the Veteran received emergency and continued non-emergency treatments for psychiatric symptoms at WRMC, WPH, and ancillary non-VA medical facilities from February 27, 2013, through March 19, 2013. See, e.g., March 1, 2013 Psychiatric Evaluation from WPH (noting that the Veteran was diagnosed with frontal temporal lobe dementia and was “absolutely confused” during his hospitalization exhibiting “assaultive behavior” and that he “[was to be] monitored very carefully [and] . . . given safety status.”). The record also reflects that, as acknowledged by the VAMC, on March 5, March 8, and March 12, 2013, WPH made reasonable attempts to transfer the Veteran to a VA facility, but was informed that there was no available space for the Veteran at those times. See December 2013 Statement of the Case. As pertinent, claims for payment or reimbursement of the costs of unauthorized emergency treatment may be approved for continued, non-emergency treatment if the non-VA facility notified VA at the time the Veteran could be safely transferred to a VA facility and the transfer of the Veteran was not accepted; and the non-VA facility made and documented reasonable attempts to request transfer of the Veteran to VA. 38 C.F.R. § 17.1005(c). The VAMC originally denied the present claim based on the Veteran’s third-party medical coverage, which the AOJ found to be a bar from reimbursement or payment from VA based on applicable statutes and regulations at that time. See December 2013 VAMC Determination; December 2013 Statement of the Case. There is no dispute that the Veteran has satisfied the remaining conditions that allow for reimbursement or payment of his unauthorized medical expenses under 38 U.S.C. § 1725. See December 2013 VAMC Determination; December 2013 Statement of the Case. Since the VAMC’s determination, as pointed out by the Veteran’s representative in a November 2016 Appellant’s Brief, in April 2016, the United States Court of Appeals for Veterans Claims (Court) invalidated and set aside 38 C.F.R. § 17.1002(f) to the extent that the regulation acts as a bar to reimbursement in cases where a Veteran has only partial coverage under a health plan. See Staab v. McDonald, 28 Vet. App. 50 (2016). Accordingly, in cases where a Veteran seeks reimbursement or payment and had partial coverage, such as private insurance for the medical care at issue, VA reimbursement or payment is not precluded as a matter of law. See id. Given the foregoing, entitlement to reimbursement or payment for that part of medical expenses incurred at WRMC, WPH, and ancillary non-VA medical providers from February 27, 2013, through March 19, 2013, for which the Veteran remains liable under his third-party medical coverage, other than any deductible, copayment, or similar payment, see 38 C.F.R. § 17.1005(f), is warranted. 38 U.S.C. § 1725; 38 C.F.R. § 17.1002; Staab, supra. His appeal is granted to this extent. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Kim, Associate Counsel