Citation Nr: 18152028 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 17-00 053A DATE: November 20, 2018 ORDER Payment or reimbursement of medical expenses incurred on July 14, 2016, at Baptist Medical Center (BMC) is granted. FINDING OF FACT A prudent layperson would have reasonably expected that delay in seeking immediate medical attention for the Veteran’s condition resulting from a service-connected disability on July 14, 2016, would have been hazardous to life or health; a Department of Veterans Affairs (VA)-related medical facility was not feasibly available during her emergency, and an attempt to use one beforehand would not have been considered reasonable by a prudent layperson. CONCLUSION OF LAW The criteria for payment or reimbursement of medical expenses incurred on July 14, 2016, at BMC have been met. 38 U.S.C. §§ 1728, 5107; 38 C.F.R. §§ 17.120, 17.121. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 2008 to November 2008. This appeal is before the Board of Veterans’ Appeals (Board) from an August 2016 decision of the VA Veterans Health Administration (VHA). In the absence of prior appropriate authorization under 38 C.F.R. §§ 17.53 and 17.54, under 38 U.S.C. § 1728, a Veteran is entitled to payment or reimbursement of unauthorized medical expenses incurred at a non-VA facility for treatment of a service-connected disability when it is also shown that (1) the services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health, and (2) 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. The provisions of 38 U.S.C. § 1728 are implemented under 38 C.F.R. §§ 17.120-32. For payment under 38 U.S.C. § 1728, the following conditions must be met: Treatment must be rendered in a medical emergency 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. § 17.120(b). VA or other Federal facilities that VA has an agreement with to furnish health care services for veterans were not feasibly available, and an attempt to use them beforehand or obtain prior VA authorization for the services required would not have been reasonable, sound, wise, or practicable, or treatment had been or would have been refused. 38 C.F.R. § 17.120(c). The record reflects that the Veteran was seen at the BMC on July 14, 2016, for a flare-up of severe low back and sciatic pain in connection with her chronic, service-connected back disorder of thoracolumbar spine scoliosis with spondylosis and degenerative disc disease with bilateral lower extremity neuritic pain. As reflected an August 2016 decision and a September 2016 statement of the case, the agency of original jurisdiction (AOJ) denied payment or reimbursement under 38 U.S.C. § 1728 on the bases that the Veteran’s episode of care was considered non-emergent, and that VA medical facilities were feasibly available. As reflected in her September 2016 notice of disagreement and November 2016 substantive appeal, the Veteran asserts that on the day of treatment she was driven to the BMC emergency room (ER) by employees of K9 for Warriors because she was experiencing too much back pain to drive, and that they wanted to be certain that she had not injured her back any further. She asserts that she did not have the time necessary to figure out where the nearest VA facility was, and that she was driven by someone else and therefore went to the nearest available hospital. The Veteran also submitted a December 2016 statement from a K9 for Warriors employee, M.J. The statement indicates that, on the day in question, the Veteran began grabbing her back and screaming in pain and, due to the amount of pain she was experiencing, they believed her best option was to visit the nearest emergency room as quickly as possible. Given the supporting hospital records and lack of contradicting evidence, and resolving reasonable doubt in the Veteran’s favor, the Board finds the Veteran’s and M.J.’s statements regarding the severity of her back condition and emergent nature of the situation to be credible. It thus finds that the Veteran’s back condition on July 14, 2016, 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 health. The Board finds also that a VA-related medical facility would not have been feasibly available during the Veteran’s emergency, and an attempt to use one beforehand would not have been considered reasonable by a prudent layperson. 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. Cotton v. Brown, 7 Vet. App 325, 327-28 (1995). Given the Veteran’s and M.J.’s statements regarding her symptoms, her need to be driven, and the lack of time and ability to determine the closest VA facility where she could be adequately helped, and resolving reasonable doubt in the Veteran’s favor, the Board finds that a VA facility was not feasibly available to a Veteran during her emergency. Accordingly, payment or reimbursement of medical expenses incurred on July 14, 2016, at BMC must be granted. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Andrew Mack, Counsel