Citation Nr: 18140348 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 15-43 031 DATE: October 2, 2018 ORDER Payment or reimbursement for unauthorized medical expenses incurred at Tulane Medical Center on November 1, 2014, is denied. FINDING OF FACT VA facilities were feasibly available to the Veteran for treatment of his condition on November 1, 2014. CONCLUSION OF LAW The criteria for payment or reimbursement for unauthorized medical expenses incurred at Tulane Medical Center on November 1, 2014, are not met. 38 U.S.C. §§ 1703, 1728, 5107; 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from April 1966 to February 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 letter of determination by a Department of Veterans Affairs (VA) Medical Center. On appeal, the Veteran asserts that VA should pay for his treatment that he received on November 1, 2014, from the Tulane Medical Center. The Veteran indicated in his statements on appeal that he was a Vietnam Combat Veteran, who suffers from paranoid schizophrenia; he further indicated that he felt that the cyst he was treated for on November 1, 2014, would attack his brain. The private treatment records reflect that the Veteran was seen on November 1, 2014, at the emergency room of Tulane Medical Center for complaints of an abscess on his right cheek which had been present for a month; he reported that it was a small, hard bump without any associated fever or chills prior to his visit. He denied any dental pain. The Veteran was diagnosed with an infected sebaceous cyst, which was drained during his visit. He was prescribed antibiotics and discharged to his home. VA treatment records indicate that the Veteran was routinely seen for treatment at the New Orleans VA Medical Center prior to and after November 1, 2014. The New Orleans VA Medical Center is noted to be approximately 2.5 miles from his home, and approximately 1 mile from the Tulane Medical Center, which was approximately 3 miles from the Veteran’s home. The applicable statute and regulations direct that in the absence of prior appropriate authorization under 38 C.F.R. §§ 17.53 and 17.54, in order to be entitled to payment or reimbursement of unauthorized medical expenses incurred at a non-VA facility, a claimant must show: (a) The care and services rendered were either: . . . (3) for any disability of a veteran who has a total disability, permanent in nature, resulting from a service-connected disability, (b) The services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health; and, (c) No VA or other Federal facilities were feasibly available and an attempt to use them beforehand would not have been reasonable. 38 U.S.C. § 1728; 38 C.F.R. § 17.120. If any one of the foregoing requirements is lacking, the benefit sought may not be granted. See Zimick v. West, 11 Vet. App. 45, 49 (1998); Malone v. Gober, 10 Vet. App. 539, 547 (1997); see also Melson v. Derwinski, 1 Vet. App. 334, 337 (the use of the conjunctive “and” in a statutory provision meant that all of the conditions listed in the provision must be met). The standard for finding that services were rendered in a “medical emergency” under 38 U.S.C. § 1728 is the same as that defined in 38 U.S.C. § 1725. Therefore, the claim for payment or reimbursement for initial evaluation and treatment must be for a condition of such a nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. This standard would be met if a situation involved acute symptoms of sufficient severity (including severe pain) that a prudent layperson who possesses an average knowledge of health and medicine could reasonably expect the absence of immediate medical attention to result in placing the health of the individual in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. 38 C.F.R. § 17.1002(b). Initially, the Board reflects that since February 8, 1993, the Veteran has been assigned a total disability rating for his paranoid schizophrenia. Accordingly, the Board finds that the Veteran has a permanent and total disability due to his service-connected disabilities, and therefore under the provisions of section (a)(3) above, the Veteran is eligible for payment or reimbursement under the provisions of 38 C.F.R. § 1728. Next, the Veteran sought treatment at Tulane Medical Center for an infected sebaceous cyst, which was trained and he was given antibiotics to treat that infection. In light of the obvious notation of an infected abscess and by resolving reasonable doubt in his favor as to this issue, the Board finds that the Veteran’s condition on November 1, 2014 was of such a nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. Consequently, this case turns solely on the issue of whether VA facilities were feasibly available to treat the Veteran on November 1, 2014. The Board finds that they were in this case. The existence of a VA facility does not in and of itself mean that the VA facility was feasibly available. Cotton v. Brown, 7 Vet. App 325, 327 (1995). The fact that a VA medical center was located in the same city as the private facility does not provide an adequate basis for the Board’s findings that a VA facility was “available”; rather, the determination of whether a VA facility was “feasibly available” must be made after consideration of such factors as the urgent nature of the veteran’s medical condition and the length of any delay that would have been required to obtain treatment from a VA facility. Id. at 327-28. Respecting the relative distance of the travel involved, the Board may take judicial notice of facts, as compared to evidence, which are not subject to interpretation. See Yeoman v. West, 140 F.3d 1443 (Fed. Cir. 1998); Dedicatoria v. Brown, 8 Vet. App. 441 (1995). Other factors to consider include whether a prudent layperson would consider an attempt to use a VA facility beforehand or obtain prior VA authorization for the services required would have been reasonable, sound, wise, or practicable, or whether treatment had been or would have been refused. As an example, these conditions would be met by evidence establishing that a Veteran was brought to a hospital in an ambulance and the ambulance personnel determined the nearest available appropriate level of care was at a non–VA medical center. 38 C.F.R. §§ 17.120(c), 17.1002(c). The Veteran’s home is approximately 3 miles from the Tulane Medical Center and is approximately 2.5 miles from the New Orleans VA Medical Center; the distance between Tulane Medical Center and the New Orleans VA Medical Center is approximately 1 mile. Based on these facts, the Board finds that VA facilities were feasibly available to the Veteran in this case. The Veteran has not indicated that he would have been unable to obtain medical services from VA, and in fact, the evidence demonstrates that the Veteran routinely sought medical services from the New Orleans VA Medical Center prior to November 1, 2014; nor has he asserted or otherwise provided any evidence to demonstrate that the New Orleans VA Medical Center would have not been open or otherwise been able to accommodate treatment of his medical condition on November 1, 2014. In short, the Veteran’s home was closer to the VA facility that could have accommodated treatment of his medical condition on November 1, 2014, and it appears that he instead sought treatment at a private facility that was further from his home. Accordingly, as VA facilities were feasibly available to treat the Veteran’s medical condition, payment or reimbursement for medical expenses incurred at Tulane Medical Center on November 1, 2014, is not warranted based on the evidence of record at this time. See 38 U.S.C. §§ 1728, 5107; 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120, 17.121. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Peters, Counsel