Citation Nr: 18140691
Decision Date: 10/05/18	Archive Date: 10/05/18

DOCKET NO. 12-04 158
DATE:	 
REMANDED
Payment or reimbursement of medical expenses incurred at a private facility from May 3, 2011 to May 5, 2011.
REASONS FOR REMAND
The Veteran seeks payment or reimbursement of medical expenses incurred for treatment at a private facility from May 3, 2011 to May 5, 2011 for treatment of an episode of confusion with a possible transient ischemic attack.  The record reflects that the appeal was denied on the basis that the Veteran had third-party health care coverage through Medicare.
Under the law, 38 C.F.R. § 17.1002(f) 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, Staab stands for the proposition that partial coverage under a health-plan contract for 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 § 1725 benefits, and remanding the matter for readjudication). To the extent that § 17.1002 of the regulations provides otherwise, it has been held invalid by the Court.  
The regulation was amended in January 2018 and the revised regulation is applicable to all claims pending as of April 8, 2016. Consequently, the appeal was denied on an invalid basis.  Moreover, because the agency of original jurisdiction (AOJ) relied on this provision to deny the claim, the claim was not developed or considered on any other basis.  Therefore, the Board is unable to fully assess the claim based on the record as it stands.
The matter is REMANDED for the following actions:
1. Develop the appeal as needed to ascertain whether the claim meets the criteria for payment pursuant to 38 U.S.C. § 1725 under 38 C.F.R. § 17.1002 as revised.
2. Then, readjudicate the issue on appeal.  If the benefits sought are not granted to the Veteran’s satisfaction, a supplemental statement of the case should be issued with a requisite opportunity to respond.
 
L. HOWELL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	K. M. Schaefer, Counsel