Citation Nr: 18154331
Decision Date: 11/30/18	Archive Date: 11/29/18

DOCKET NO. 16-12 374A
DATE:	November 30, 2018
ORDER
Payment or reimbursement of medical expenses incurred on October 2, 2015, at Bayfront Health Dade City (BHDC) is granted.
FINDING OF FACT
A prudent layperson would have reasonably expected that delay in seeking immediate medical attention for the Veteran’s right ear condition on October 2, 2015, 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 October 2, 2015, at BHDC have been met.  38 U.S.C. §§ 1725, 5107; 38 C.F.R. §§ 17.1000-1008.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from December 1987 to August 1981.  
This appeal is before the Board of Veterans’ Appeals (Board) from a December 2015 decision of the VA Veterans Health Administration (VHA).
Pursuant to 38 U.S.C. § 1725, under certain circumstances, VA shall reimburse a veteran for the reasonable value of emergency treatment furnished the veteran in a non-Department facility.  VA regulations at 38 C.F.R. §§ 17.1000 through 17.1008 constitute the requirements under 38 U.S.C. § 1725 that govern VA payment or reimbursement for non-VA emergency services furnished to a veteran for nonservice-connected conditions.  38 C.F.R. § 17.1000.
Under such regulations, payment or reimbursement under 38 U.S.C. § 1725 for emergency treatment will be made only if certain conditions are met, which are listed under 38 C.F.R. § 17.1002.  The only two such conditions at issue in this case are as follows:  
(b) The claim for payment or reimbursement for the initial evaluation and treatment is 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 there were an emergency medical condition manifesting itself by 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);
(c) A VA or other Federal facility/provider that VA has an agreement with to furnish health care services for veterans was not feasibly available and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson (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).
The record reflects that the Veteran was seen at the BHDC emergency room (ER) on October 2, 2015, for complaints of severe right ear pain.  It was noted that she had been seen by a primary care physician the day before for her ear pain, had been diagnosed with an ear infection, and had been given medication for it; however, her pain had not gotten better and was of such severity that she was unable to sleep.  It was also noted that she had tried to get an appointment with VA, but was unable to do so.  She was treated for diagnoses of otitis media and otitis externa, prescribed pain medication, and discharged that day.
As reflected a February 2016 statement of the case, the agency of original jurisdiction denied payment or reimbursement on the bases that the Veteran’s episode of care was considered non-emergent, as her chief complaint had been of ear pain with onset of three days, and that VA medical facilities were feasibly available.  
As reflected in her January 2016 notice of disagreement and March 2016 substantive appeal, the Veteran asserts that she attempted to see her local VA medical facility prior to visiting BHDC, but when contacting VA was told they were unable to provide care, and to visit an ER.  She further asserts that, while she would normally attempt to visit the nearest VA hospital ER, her condition was an emergency and the drive was 28 miles and an hour and 15 minutes (given the traffic at the time).  She therefore did not find it feasible to make the drive, given her condition.  
In support of her claim, the Veteran submitted the email exchange between her and her local VA primary care facility on October 2, 2015.  The exchange reflects that the Veteran informed the VA staff nurse that she was suffering such severe pain from an ear infection that she had considered visiting the ER, and was requesting an appointment with her VA physician that day.  The VA nurse informed her that her physician was unavailable and “would want [her] to go the ER,” as to visit the local VA facility would be a waste of time and delay in her treatment.  
Particularly given the supporting documentation above, the Board finds the Veteran’s assertions of the severity of her right ear pain and its effects, as well as her concerns about it, to be credible.  As reflected in her recorded October 2, 2015, email exchange, the nurse at her local VA facility specifically advised her to visit an ER, given her condition.  Considering these factors, and resolving reasonable doubt in her favor, the Board finds that the Veteran’s right ear condition on October 2, 2015, 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 her health.  
The Board also finds 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).  Regarding 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).  
The Veteran in this case had attempted to first use a VA medical facility to treat her ear condition, but was told by personnel at the facility that treatment was not available and that she should visit an ER.  The Board takes judicial notice that, from the Veteran’s residence, the VA hospital closest to her (as noted by the VA nurse in the October 2, 2015, email exchange) is approximately 30 miles, and 43 minutes (with some, usual traffic), away; BHDC is 2.5 miles, and about 5 minutes, away.  Given the Veteran’s statements regarding her symptoms and the October 2, 2015, VA and BHDC medical records regarding the nature of her right ear condition and the urgency of her need for treatment, a VA facility was not feasibly available to a Veteran during her emergency.
Accordingly, payment or reimbursement of medical expenses incurred on October 2, 2015, at BHDC is granted.  See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
 
A. P. SIMPSON
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Andrew Mack, Counsel