Citation Nr: 18142688 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 14-34 407 DATE: October 16, 2018 REMANDED Entitlement to payment or reimbursement of the cost of unauthorized medical services provided to the Veteran in June 2014 is remanded. REASONS FOR REMAND The Veteran served honorably on active duty in the United States Marine Corps from August 1961 to February 1962. This matter comes before the Board of Veterans’ Appeals from an August 2014 determination made by the Department of Veterans Affairs (VA) Medical Center in Orlando, Florida. Entitlement to payment or reimbursement of the cost of unauthorized medical services provided to the Veteran in June 2014 is remanded. The Veteran is seeking reimbursement for over $9,000 in costs associated with medical services he received at Bert Fish Medical Center in June 2014. Congress has authorized the reimbursement for unauthorized emergency medical treatment under two statutory provisions, 38 U.S.C. § 1728 and 38 U.S.C. § 1725. There is no indication from the record, nor has the Veteran alleged, that he meets any criterion for benefits under 38 U.S.C. § 1728 (applicable where a Veteran has a total disability, or, treatment at the private medical facility was for an adjudicated service-connected disability, a non-service-connected disability associated with and held to be aggravating an adjudicated service-connected disability, or for any treatment of a veteran who is participating in a rehabilitation program). See 38 C.F.R. §§ 17.120, 1747(i). Thus, the Board must turn to the law regarding reimbursement for emergency services for nonservice-connected conditions in non-VA facilities, 38 U.S.C. § 1725. Payment or reimbursement of non-VA emergency medical services for non-service connected disorders for Veterans without full insurance coverage is available if certain conditions are met. 38 U.S.C. § 1725; 38 C.F.R. §§ 17.1000-17.1008. In a recent precedential decision, the United States Court of Appeals for Veterans Claims (Court) held that the previous version of 38 C.F.R. § 17.1002(f), which provided 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 § 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, including under Medicare Part A and Part B, for the non-VA emergency treatment at issue, 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). However, 38 U.S.C. § 1725(c)(4)(D) limits reimbursement for copayments or similar payments, and such payment limitations were not set aside by the Court in Staab. In this matter, the Veteran has been denied reimbursement for $9,279.40 associated with care at Bert Fish Medical Center due to his enrollment in Medicare Part A, which was held to cover those medical costs. However, outside of VA’s own assertions that the Veteran had Medicare Part A coverage, there is no conclusive evidence that the Veteran was actually enrolled in Medicare Part A during his care at the non-VA healthcare provider in question. As the Veteran’s healthcare coverage is central to the adjudication of his claim, the Board must remand this matter for further evidentiary development. The matter is REMANDED for the following action: 1. The AOJ should send the Veteran a letter, including the appropriate forms to release information, requesting that he provide information concerning the date of his enrollment in Medicare Part A (or any other health-plan coverage), as well as any billing information related to his care at Bert Fish Medical Center that are not currently of record. Thereafter, the AOJ should use any authorization provided by the Veteran to verify whether the Veteran was enrolled in Medicare Part A at the time of his June 2014 non-VA treatment. 2. If the Veteran is unable to provide information which specifically shows whether he had Medicare Part A coverage for the unreimbursed expenses currently on appeal, contact the Social Security Administration in an attempt to obtain records which document whether the Veteran was covered by Medicare Part A for the dates he received care at Bert Fish Medical Center in June 2014. MATTHEW TENNER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Whitelaw, Associate Counsel