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The Veterans Consortium Pro Bono Program

Staab v. McDonald, 2016

  • Organization: CAVC
  • Document Type: Case law/admin decisions
  • Date Created: Thursday, December 01, 2016
  • Submitted: Thursday, December 01, 2016
  • Attachment(s): PDF

Before LANCE, PIETSCH, and GREENBERG, Judges.
GREENBERG, Judge: This is a case of statutory interpretation.  The appellant, Richard W. Staab, appeals through counsel a December 6, 2013, Board of Veterans' Appeals (Board) decision that denied entitlement to reimbursement of medical expenses incurred for emergency medical services provided at non-VA medical facilities from December 27, 2010, through December 31, 2011.  Record (R.) at 3-9.  The appellant argues that the Board erred in finding him ineligible for reimbursement under 38 U.S.C. § 1725 because (1) under the plain meaning of the statute, the partial coverage of his medical expenses by Medicare does not render him ineligible for reimbursement; (2) the legislative history of amendments to section 1725 supports this reading and application of the statute; (3) the Secretary's regulation concerning eligibility for reimbursement, 38 C.F.R. § 17.1002(f), is inconsistent with the statute and invalid; and (4) the Board provided an inadequate statement of reasons or bases for denying reimbursement for all of the appellant's treatments, failing to determine which of his treatments were not covered by Medicare at all.  Appellant's Brief (Br.) at 5-18.  On February 3, 2016, the appellant filed a motion for oral argument.  This appeal is timely, and the Court has jurisdiction over the case pursuant to 38 U.S.C. §§ 7252(a) and 7266.

On remand, the appellant may present, and the Board must consider, any additional evidence and arguments, to include the remaining argument raised in this appeal if necessary.  See Kay v. Principi, 16 Vet.App. 529, 534 (2002).  This matter is to be provided expeditious treatment.  See 38 U.S.C. § 7112; see also Hayburn's Case, 2 U.S. (2 Dall.) at 410, n. ("[M]any unfortunate and meritorious [veterans], whom Congress have justly thought proper objects of immediate relief, may suffer great distress, even by a short delay, and may be utterly ruined, by a long one."). For the foregoing reasons, the appellant's February 3, 2016, motion for oral argument is denied.  The Board's December 6, 2013, decision is VACATED; the determination that the appellant's partial Medicare coverage is a bar to eligibility under 38 U.S.C. § 1725 is REVERSED; and the matter of reimbursement for the appellant's claimed emergency medical care costs is REMANDED for readjudication.  Further, 38 C.F.R. § 17.1002(f) is held invalid and SET ASIDE.