Citation Nr: 18154360 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 16-24 919A DATE: November 29, 2018 ORDER Entitlement to payment or reimbursement of medical expenses incurred during non-VA medical services provided at PeaceHealth West Eugene Urgent Care on March 25, 2014, on the basis of prior authorization under the provisions of 38 U.S.C. § 1703(a), is denied. Entitlement to payment or reimbursement of unauthorized medical expenses incurred during non-VA medical services at PeaceHealth West Eugene Urgent Care on March 25, 2014, is denied. FINDINGS OF FACT 1. On Tuesday, March 25, 2014, at around 4:15pm, the Veteran arrived at PeaceHealth West Eugene Urgent Care [hereinafter PeaceHealth], located in Eugene, Oregon. He arrived by private vehicle driven by his spouse. His complaints included coughing, ear pressure, sinus pressure, and sinus pain, worsening over the past 3-5 days. He also had a history of chronic nausea and vomiting. The assessment was sinusitis, with a history of chronic nausea and vomiting with diabetes. He remained at PeaceHealth for a little over two hours. 2. The Veteran is service-connected for a total disability permanent in nature. 3. VA did not provide prior authorization from a VA nurse under a contract or individual authorization for the Veteran’s private medical services at PeaceHealth on March 25, 2014. 4. VA facilities were feasibly available and an attempt to use them beforehand would have been considered reasonable by a prudent layperson, during the Veteran’s private medical services at PeaceHealth on March 25, 2014. 5. A “medical emergency” did not exist for the Veteran under the prudent layperson standard during his private medical services at PeaceHealth on March 25, 2014. CONCLUSIONS OF LAW 1. The criteria are not met for prior authorization of payment or reimbursement of medical expenses incurred during non-VA medical services provided at PeaceHealth on March 25, 2014. 38 U.S.C. §§ 1701, 1703, 5107 (2012); 38 C.F.R. §§ 3.102, 17.52, 17.53, 17.54, 17.120, 17.130, 17.1002 (2017). 2. The criteria are not met for payment or reimbursement of unauthorized medical expenses incurred during non-VA medical services at PeaceHealth on March 25, 2014. 38 U.S.C. §§ 1728, 5107 (2012); 38 C.F.R. §§ 17.53, 17.120, 17.130, 17.1002(a)-(c) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the U.S. Army from September 1968 to September 1970. His awards and decorations include the Combat Infantryman Badge (CIB) and Air Medal, due to his participation in combat with the enemy in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 decision by the Department of Veterans Affairs (VA) Veteran’s Integrated Service Network (VISN 20) Payment Center in Portland, Oregon. This appeal was processed using both a paper-based claims file and an electronic Veterans Benefits Management System (VBMS). VA’s Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA’s duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In Beverly v. Nicholson, 19 Vet. App. 394, 403-04 (2005), although not explicitly stated, the U.S. Court of Appeals for Veterans Claims (Court) implied the VCAA is applicable to a Chapter 17 claim, but then held that the failure to comply with the VCAA notice requirements in that case constituted non-prejudicial error. But to the extent the VCAA is applicable to the instant medical expense reimbursement claims, the Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Prior Authorization under 38 U.S.C. § 1703(a) On Tuesday, March 25, 2014, at around 4:15pm, the Veteran arrived at PeaceHealth urgent care, located in Eugene, Oregon. He arrived by private vehicle driven by his spouse. His complaints included coughing, ear pressure, sinus pressure, and sinus pain, worsening over the past 3-5 days. He also had a history of “persistent” chronic nausea and vomiting. But it was clinically noted he was “in no acute distress” upon arrival. The assessment was sinusitis, with a history of chronic nausea and vomiting with diabetes. He was put on Bactrim DS and Tessalon for his sinus infection and coughing. He was referred to Eugene Gastroenterology for treatment of his stomach problems. He was discharged a little over two hours later at 6:43pm. It appears the Veteran had no private health insurance at the time of the private treatment. The PeaceHealth facility submitted a completed March 2014 standard billing form (HCFA 1500) to the VA medical facility of jurisdiction, in the amount of $271.00 for their services that evening. The Veteran states that he already compensated the private provider in full in the amount of $271.00. The Veteran has requested payment or reimbursement from VA for his unauthorized medical expenses in the amount of $271, contending that the private urgent care medical services at PeaceHealth on the afternoon of March 25, 2014, was 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. He has also asserted that the nearest VA Medical Center (VAMC) in Roseburg, Oregon was not feasibly available at the time of the private hospitalization due to the severity or urgency of his medical condition and the relative distance of the travel involved (the nearest VAMC was 67.1 miles away from the Veteran, while the nearby PeaceHealth facility was only 1 to 2 miles away). Also, he asserts that the nearby VA Eugene Health Care Center was closing that afternoon at 4:30pm, so he was unable to seek treatment at that nearby location. In addition, the Veteran alleges that prior to visiting PeaceHealth on the afternoon of March 25, 2014, he initially called the nearby VA Eugene Health Care Center. A nurse from this VA facility, D.A.C., RN, advised him on the telephone to seek emergency treatment at the nearest urgent care clinic. In other words, the Veteran believes VA authorized the private urgent care treatment at PeaceHealth that afternoon. See December 2015 Notice of Disagreement (NOD); June 2016 VA Form 9. The VA denied the Veteran’s appeal for payment or reimbursement of medical expenses incurred during non-VA medical services provided at PeaceHealth on March 25, 2014, on the basis of prior authorization under the provisions of 38 U.S.C. § 1703(a). The VA determined that his private urgent care treatment on March 25, 2014, was non-emergent. The VA also determined that VA facilities were feasibly available to the Veteran on the afternoon of March 25, 2014. In other words, nearby VA facilities (either a VAMC or a VA outpatient clinic) could have performed the necessary treatment for the Veteran free of charge. The Veteran has appealed this issue to the Board. When VA facilities or other government facilities are not capable of furnishing economical hospital care or medical services because of geographic inaccessibility or are not capable of furnishing care or services required, VA may authorize or contract with non-VA facilities for care. 38 U.S.C. § 1703. When demand is only for infrequent use, individual authorizations may be used. 38 U.S.C. § 1703(a); 38 C.F.R. § 17.52(a) (2017); Malone v. Gober, 10 Vet. App. 539, 541 (1997). In adjudicating a claim for payment or reimbursement of medical expenses, the VA must make an initial factual determination as to whether VA actually gave the claimant prior authorization for non-VA medical care received at a private facility, if this issue is raised. 38 U.S.C. § 1703(a); 38 C.F.R. § 17.54. This is a factual, not a medical, determination. Similes v. Brown, 6 Vet. App. 555, 557 (1994). The admission of a veteran to a non-VA hospital at VA expense must be authorized in advance. In the case of an emergency that existed at the time of admission, an authorization may be deemed a prior authorization if an application, whether formal or informal, by telephone, telegraph, or other communication, made by the veteran or by others on his/her behalf is dispatched to VA for veterans in the 48 contiguous States and Puerto Rico, within 72 hours after the hour of admission, including in the computation of time Saturday, Sunday, and holidays. 38 C.F.R. § 17.54(a). In determining the claim at issue, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that a VA nurse, D.A.C., RN provided prior individual authorization on a one-time basis for his non-VA medical services at PeaceHealth on the afternoon of March 25, 2014, such that all costs incurred should be covered by VA. See generally 38 U.S.C. § 1703(a) (2012); 38 C.F.R. § 17.52(a) (2017). There are two categories under 38 U.S.C. § 1703(a) that are potentially applicable to the Veteran’s particular fact pattern in the present case: (1) 38 U.S.C. § 1703(a)(1) and 38 C.F.R. § 17.52(a)(1); and (2) 38 U.S.C. § 1703(a)(2) and 38 C.F.R. § 17.52(a)(2). The Board will only address these two categories, as they are the only provisions in VA’s prior authorization statute that could apply here. Notably, under either of these two categories, there is no requirement for a “medical emergency” to meet the criteria for prior authorization, which is beneficial to the Veteran. Also, under these two categories, there is no requirement for an actual transfer from a VA facility to a private facility. See Zimick v. West, 11 Vet. App. 45, 52 (1998) (“In order to ‘transfer’ to a non-VA facility, a patient already would need to be in a VA facility.”) See also 38 U.S.C. § 1703(a)(3) and 38 C.F.R. § 17.52(a)(3) (pertaining to the actual transfer of a Veteran from a VA facility to a non-VA facility). Here, there was no transfer of the Veteran from a VA facility to a non-VA facility, as the Veteran was driven by his spouse to the private PeaceHealth facility. At the outset, the Board is cognizant of the recent passage of the Veterans’ Access to Care through Choice, Accountability, and Transparency Act of 2014 (H.R. 3230; Pub. L. 113–146), also known as the “Veterans Choice Act.” VA regulations implemented to effectuate this Act provide that VA will pay for non-VA medical services for veterans who are determined by VA to meet the eligibility criteria of the Veterans Choice Program. See 38 C.F.R. §§ 17.1500-1540 (2017). However, the Veterans Choice Program only became available on November 5, 2014. See 79 Fed. Reg. 65571, 65585 (November 5, 2014). Therefore, the Veteran’s private urgent care treatment in question on March 25, 2014, would not qualify under the Veterans Choice Act, because it has no provision for retroactive application. As to the first category that is potentially applicable, under 38 U.S.C. § 1703(a)(1) and 38 C.F.R. § 17.52(a)(1), care in public or private facilities, subject to the provisions of §§ 17.53, 17.54, 17.55 and 17.56, will be authorized, whether under a contract or an individual authorization, for hospital care or “medical services” for the treatment of: 1) a service-connected disability; 2) disability for which a Veteran was discharged or released from the active military, naval, or air service; 3) a disability of a Veteran who has a total disability permanent in nature from a service-connected disability; 4) disability associated with and held to be aggravating a service-connected disability; or 5) any disability of a Veteran participating in a rehabilitation program under 38 U.S.C. Chapter 31 and when there is a need for hospital care for reasons set forth in VA regulations. 38 U.S.C. § 1703(a)(1); 38 C.F.R. § 17.52(a)(1) (emphasis added). For purposes of VA prior authorization above, the term “medical services” includes medical examination, treatment, and rehabilitative services (i.e., outpatient care), among other items. 38 U.S.C. § 1701(6). Therefore, it is a broad definition and would include the Veteran’s private urgent care treatment at PeaceHealth on March 25, 2014. The Veteran meets the basic requirements of the above first category as he received “medical services” during his urgent care treatment at PeaceHealth on March 25, 2014, while simultaneously having a 100 percent permanent and total (P&T) rating due to his service-connected disabilities. See 38 C.F.R. § 17.52(a)(1)(iii). In this regard, the Veteran is service-connected for a total disability permanent in nature. That is, he is service-connected for PTSD, diabetes mellitus, coronary artery disease, right and left lower extremity diabetic peripheral neuropathies, tinnitus, malaria, and mild diabetic nephropathy, with a combined rating of 100 percent. In particular, he is eligible for a permanent and total (P&T) rating for all his service-connected disabilities since June 5, 2010, according to the VA. Therefore, he meets the threshold criteria for prior authorization due to the mere presence of his service-connected P&T disabilities. 38 U.S.C. § 1703(a)(1)(C); 38 C.F.R. § 17.52(a)(1)(iii). This fact is undisputed. As to the second category that is potentially applicable, under 38 U.S.C. § 1703(a)(2)(A) and 38 C.F.R. § 17.52(a)(2)(i), care in public or private facilities, subject to the provisions of §§17.53, 17.54, 17.55 and 17.56, will be authorized, whether under a contract or an individual authorization, for “medical services” for the treatment of any disability of a veteran who has a service-connected disability rated at 50 percent or more. The Veteran meets the basic requirements of the above second category as he received “medical services” during his urgent care treatment at PeaceHealth on March 25, 2014. He also has a service-connected disability rated at 50 percent or more – PTSD at 50 percent disabling from January 29, 2001, and PTSD at 70 percent disabling from August 29, 2002. It follows that the sole remaining questions in the present case for the prior authorization issue under 38 U.S.C. § 1703(a) are the following: (1) whether a VA nurse, D.A.C., RN, provided prior individual authorization on a one-time basis for the Veteran’s non-VA medical services at PeaceHealth on the afternoon of March 25, 2014, such that all costs incurred should be covered by VA. See 38 U.S.C. § 1703(a); 38 C.F.R. § 17.52(a); and (2) whether a VA or other Federal facility / provider was not feasibly available on the afternoon of March 25, 2014, and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson. See 38 U.S.C. § 1703(a); 38 C.F.R. §§ 17.52(a), 17.53, 17.120(c), 17.1002(c). Simply stated, the Veteran would prevail here if it established by a written contract or written individual authorization that the appropriate VA personnel provided prior authorization for his private “medical services” at PeaceHealth on March 25, 2014, and it is also established that a VA facility was not feasibly available to the Veteran under applicable VA law and regulations. With regard to the first question on whether prior authorization was given, what constitutes a prior authorization by VA is not expressly defined; however, the oral advice of a doctor or a nurse to go to a non-VA hospital is not the specific type of authorization contemplated by 38 C.F.R. § 17.54. Smith v. Derwinski, 2 Vet. App. 378, 378-79 (1992); but see Cantu v. Principi, 18 Vet. App. 92 (2004) (holding that the requirements under 38 C.F.R. § 17.54 for authorization were met when a VA physician arranged a veteran’s transfer and transportation from VA outpatient clinic to private facility). In short, simple belief that the treatment was authorized, without any confirmation or action by VA, is not enough to show prior authorization. VA’s General Counsel, in response to the question regarding “[w]ho has the authority to approve or authorize a request for private hospitalization at VA expense under 38 U.S.C. § 1703(a), and what type of action(s) is necessary to constitute prior authorization under 38 C.F.R. § [17.54]” has indicated that the requirements for obtaining prior authorization for private medical expenses are quite specific. In addition to meeting statutory requirements for reimbursement, any verbal authorizations must be confirmed in writing. See VA O.G.C. Concl. Op. 1-95 at paragraphs 16-17 (emphasis added). Upon review of the evidence, the Board finds that VA did not provide prior authorization under a contract or individual authorization for the Veteran’s private “medical services” on March 25, 2014 at PeaceHealth. Thus, the cost of this visit at a non-VA urgent care facility should not be covered by VA. See 38 U.S.C. § 1703(a); 38 C.F.R. § 17.52(a). Although it appears a VA nurse, D.A.C., RN, at the VA Eugene Health Care Center in Eugene, Oregon, may have had the authority to refer the Veteran for treatment with a private physician, there is no probative evidence in the record that the Veteran received prior authorization from D.A.C., RN, or any other VA clinical personnel in writing for the specific date in question. See again VAOGCCONCLOP 1-95 at paragraphs 16 and 17. That is, there is no proper, written confirmation of record for prior authorization for VA purposes for March 25, 2014. In fact, the contemporaneous medical documentation of the VA Eugene Health Care Center in Eugene, Oregon, establishes there was no prior authorization for the Veteran’s March 25, 2014 private, urgent care visit at PeaceHealth. In particular, with regard to the medical evidence of record, the Board has reviewed a VA telephone encounter note dated March 25, 2014, at 12:42pm in the afternoon. The Veteran called requesting to speak to a VA nurse. His jaw was sore, it was difficult to keep food down, and his right ankle was swollen. The swelling started that day. The Veteran wanted a call back in 45 minutes. The VA representative stated that a nurse would be informed. The Veteran hung up on the VA representative. The VA nurse in question, D.A.C., RN, acknowledged receipt of this note. The Board has also reviewed a VA addendum note dated March 25, 2014 at 3:37pm, almost three hours later that afternoon. The Veteran called to advise VA that he was going to PeaceHealth to get his problem taken care of because “no one will take the time to call him back.” The VA nurse in question, D.A.C., RN, acknowledged receipt of this note. The Board has also reviewed private urgent care progress notes from PeaceHealth dated on the afternoon of March 25, 2014, from 4:15pm to 6:43pm. None of these private progress notes discuss any prior authorization from VA personnel for the private treatment that afternoon. Significantly, in all the above VA and private clinical records, there is no probative evidence for prior authorization under a written contract or written individual authorization for the Veteran’s private “medical services” on March 25, 2014, at PeaceHealth. No VA clinical personnel including D.A.C., RN, advised the Veteran to seek private urgent care treatment that afternoon according to the clinical evidence of record. With regard to the lay evidence of record, the Board has reviewed the Veteran’s December 2015 NOD and June 2016 VA Form 9. In these documents, the Veteran has alleged that on the morning of Tuesday, March 25, 2014, he initially visited the VA Newport Outreach Clinic in Newport, Oregon to receive treatment. For the past several days, he had experienced vomiting, high fever, and a red rash on his right leg. But after waiting 30 minutes, he was told by the VA receptionist there was no VA doctor or nurse practitioner who could treat him at that particular VA clinic. Thus, he did not actually receive any treatment at this VA facility. He says the VA receptionist instructed him to have his wife drive him to another VA facility - the VA Eugene Health Care Center, which was a two-hour drive. After driving for two hours, on the afternoon of March 25, 2014, he felt he could not reach the VA Eugene Health Care Center before it closed at 4:30pm. Thus, he was directed “in good faith” on the telephone by a VA nurse - D.A.C., RN, at the VA Eugene Health Care Center, to proceed to the nearby private PeaceHealth urgent care facility. He says he spoke on the phone to this VA nurse directly. As such, he drove to this private facility “in good faith.” He maintains the VA nurse instructed him to go to the nearest “urgent care” facility, after he described his symptoms. He needed strong antibiotics for his infection on his right leg. He believes the VA nurse’s instructions to seek immediate private urgent care treatment at PeaceHealth constituted prior authorization under 38 U.S.C. § 1703(a). The Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value. The Board must analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). The Veteran’s credibility affects the weight to be given to his or her testimony and lay statements, and it is the Board’s responsibility to determine the appropriate weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, the demeanor of the witness, the facial plausibility of the testimony, the internal consistency of the testimony, impairment in memory, or, to a certain extent, bad character, among other factors. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). In particular, personal interest may affect the credibility of the evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). In the present case, the Board has determined that the Veteran’s lay assertions that he was provided prior authorization from a VA nurse for the private treatment in question at PeaceHealth are not credible due to inconsistencies with the clinical evidence discussed in the claims file above. See Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007). In this regard, contemporaneous evidence may have greater probative value than history as reported by the veteran at a later date. Curry v. Brown, 7 Vet. App. 59, 68 (1994). The absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present. AZ v. Shinseki, 731 F.3d 1303, 1315 (Fed. Cir. 2013). As explained above, oral advice of a doctor is not the type of authorization contemplated by § 17.54. Common sense dictates that the VA nurse in question, D.A.C., RN., would have documented any prior authorization or instructions in writing for the Veteran’s visit to PeaceHealth, as opposed to a VA facility, if such had been given by her. In making this determination, the Board has closely reviewed the detailed VA telephone encounter note and addendum note dated March 25, 2014, but no written authorization for the private urgent care services at PeaceHealth was noted. Instead, the Veteran hung up on the VA representative, and later called in telling VA personnel he was choosing to go to PeaceHealth on his own accord. Significantly, a private urgent care progress note from a nurse at PeaceHealth dated on the afternoon of March 25, 2014, commented that the Veteran is “a challenging historian.” The Board finds that the Veteran is not a reliable historian on this particular issue, but not due to any purposeful dishonesty. See Seng v. Holder, 584 F.3d 13, 19 (1st Cir. 2009) (notwithstanding the declarant’s intent to speak the truth, statement may lack credibility because of faulty memory). The Board now turns to the second question of whether a VA or other Federal facility / provider was not feasibly available to the Veteran on the afternoon of March 25, 2014, and an attempt to use such beforehand would not have been considered reasonable by a prudent layperson. See 38 U.S.C. § 1703(a); 38 C.F.R. §§ 17.52(a), 17.53, 17.120(c), 17.1002(c). That is, under 38 U.S.C. § 1703(a), another prerequisite to permit prior authorization for private treatment is that the VA facility was not feasibly available at the time of the alleged prior authorization due to its lack of capability to furnish the treatment in question or its geographical inaccessibility. See also 38 C.F.R. § 17.52(a). Specifically, a VA facility may be considered as not feasibly available when the urgency of the applicant’s medical condition, the relative distance of the travel involved, or the nature of the treatment required makes it necessary or economically advisable to use public or private facilities. 38 C.F.R. § 17.53. In addition, under 38 C.F.R. § 17.120(c), in determining feasible availability of VA facilities, the Board must also consider whether 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. For example, a VA facility would not be feasibly available and an attempt to use it beforehand would not have been considered reasonable by a prudent layperson if a veteran was brought to a private hospital in an ambulance and the ambulance personnel determined that the nearest available appropriate level of care was at a non-VA medical center. See 38 C.F.R. § 17.1002(c). Additionally, with regard to the issue of feasible availability, no reimbursement or payment of services will be made when such treatment was procured through private sources in preference to available Government facilities. 38 C.F.R. § 17.130. 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. On the issue of prior authorization, under VA law and regulation, the Board finds that the nearest VA facilities were “feasibly available” to the Veteran on the afternoon of March 25, 2014. 38 U.S.C. § 1703(a); 38 C.F.R. §§ 17.53, 17.120(c), 17.1002(c). With regard to the feasible availability of a VA facility on the afternoon of March 25, 2014, as to the relative distance of the travel involved, the Board, and its reviewing Courts, may take judicial notice of facts, as compared to evidence, which are not subject to interpretation. See, e.g., Yeoman v. West, 140 F.3d 1443 (Fed. Cir. 1998); Dedicatoria v. Brown, 8 Vet. App. 441 (1995) (judicial notice of laws). Applying Google Maps, the distance from the private urgent care facility the Veteran ultimately visited (PeaceHealth) in Eugene, Oregon, to the VA Eugene Health Care Center, is only a 15-minute drive (8.7 miles). When the Veteran arrived in Eugene, Oregon, after driving two hours from the VA Newport Outreach Clinic in Newport, Oregon, he could have visited the VA Eugene Health Care Center. It was open until 4:30pm that day. But instead, according to a VA addendum note dated March 25, 2014 at 3:37pm, the Veteran called to advise VA that he was going to PeaceHealth to get his problem taken care of because “no one will take the time to call him back.” This demonstrates the Veteran chose to go to the PeaceHealth urgent care clinic on his own accord. The geographical distance was not a relevant factor that afternoon. He had enough time to visit the VA Eugene Health Care Center. Also, the VA Eugene Health Care Center could have performed the necessary treatment with antibiotics for his infection at this VA facility free of charge. VA facilities were equipped to perform these particular services. There is no logical reason this particular VA facility would have refused the Veteran’s treatment on March 25, 2014. Thus, the nature of the treatment itself is not at issue. See 38 C.F.R. § 17.53, 17.120(c). As to the urgency of the Veteran’s medical condition that afternoon, he was documented to be “in no acute distress” when treated at PeaceHealth. According to the private urgent care records, he had no fever, no chills, no shortness of breath, no sore throat, and no abnormal vital signs. And his wife drove him to the PeaceHealth facility, not the Veteran himself. He did not require an ambulance. See 38 C.F.R. § 17.1002(c). When considering the factor of the urgency of his condition, the VA Eugene Health Care Center appears to have been as feasibly available to the Veteran on the afternoon of March 25, 2014 as the private PeaceHealth facility he ultimately visited. See 38 C.F.R. § 17.53. An attempt to use this VA facility that afternoon would have been reasonable, sound, wise, or practicable, and treatment for his infection would have occurred there. See 38 C.F.R. § 17.120(c), 17.1002(c). Therefore, the relevant factors for feasible availability weigh against the Veteran. Moreover, the Board has also considered March 2016 and March 2017 Veterans Health Administration (VHA) clinical opinions. The VHA clinicians opined that denial was appropriate in that the care was non-emergent on May 30, 2012. Both VHA clinicians opined that denial was appropriate in that VA facilities were feasibly available to the Veteran on the afternoon of March 25, 2014. These VHA clinician opinions provide additional evidence against the Veteran’s claim. There is no contrary medical opinion of record. In summary, on the afternoon of March 25, 2014, the Veteran’s treatment was procured through private sources in preference to available Government facilities, which is not permissible. See 38 C.F.R. § 17.130. No reimbursement or payment of services not previously authorized will be made in such circumstances. An attempt to use VA facilities beforehand would have been considered reasonable by a prudent layperson. See 38 C.F.R. §§ 17.120(c), 17.1002(c). The Board is sympathetic to the Veteran’s assertions, but is, however, bound by the applicable law and regulations and is without authority to grant benefits on an equitable basis. 38 U.S.C. §§ 503, 7104(c) (2012). No equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress. Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). To the extent that the Veteran was unaware of the proper protocol or misinformed on how to seek prior authorization for non-VA treatment, this may not be used to explain a failure to follow a promulgated regulation. See Morris v. Derwinski, 1 Vet. App. 260 (1991), citing Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384-85 (1947). Persons dealing with the Government are charged with knowledge of Federal statutes and lawfully promulgated agency regulations, regardless of actual knowledge or hardship resulting from innocent ignorance. Morris, 1 Vet. App. at 265. VA regulations are “binding on all who seek to come within their sphere,” regardless of whether a claimant has actual knowledge of what is in the regulations. Jernigan v. Shinseki, 25 Vet. App. 220 (2012). Accordingly, the Board finds that the preponderance of the evidence is against payment or reimbursement of medical expenses incurred during non-VA medical services provided at PeaceHealth on March 25, 2014, on the basis of prior authorization. 38 U.S.C. §§ 1703, 5107. This claim is denied. “Unauthorized” Medical Expense Reimbursement The Veteran has also requested payment or reimbursement from VA for his unauthorized medical expenses in the amount of $271, contending that the private urgent care medical services at PeaceHealth on the afternoon of March 25, 2014, was 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. The VA denied the Veteran’s appeal for payment or reimbursement of unauthorized medical expenses incurred during non-VA medical services provided at PeaceHealth on March 25, 2014. The VA determined that his private urgent care treatment on March 25, 2014, was non-emergent. The VA also determined that VA facilities were feasibly available to the Veteran on the afternoon of March 25, 2014. In other words, nearby VA facilities (either a VAMC or a VA outpatient clinic) could have performed the necessary treatment for the Veteran free of charge. The Veteran has appealed this issue to the Board. When a veteran receives treatment at a private facility without prior authorization, such as the case here, there are two statutes that allow for claimants to be paid or reimbursed for the medical expenses incurred for that treatment - specifically 38 U.S.C. § 1728 and 38 U.S.C. § 1725. Application of either statute is generally dependent on whether the Veteran has an adjudicated service-connected disability. In adjudicating the “unauthorized” medical expenses claim, 38 U.S.C. § 1728 for veterans with service-connected disability is for consideration because the Veteran has a permanent and total (P&T) rating due to his adjudicated service-connected disabilities, effective June 5, 2010. See 38 C.F.R. § 17.120(a)(3). Therefore, the Veteran meets the initial threshold criterion of 38 U.S.C. § 1728(a)(3), in that he has a P&T service-connected disability. Effective October 10, 2008, the provisions of 38 U.S.C. § 1725 and § 1728 were amended. See Veterans’ Mental Health and Other Care Improvements Act of 2008, Pub. L. No. 110-387, § 402, 122 Stat. 4110 (2008). The changes are liberalizing in that they make reimbursement for medical expenses mandatory instead of discretionary, as well as expand the definition of “emergency treatment” beyond the point of stabilization. In addition, the changes apply the more liberal prudent layperson standard for determining whether an actual medical emergency existed under either 38 U.S.C. § 1725 and § 1728. The Board will apply the more liberal amended law in this case because the Veteran’s private urgent care treatment at PeaceHealth occurred in March 2014, subsequent to the October 2008 effective date of the amendments. Specifically, the amended statutes expand the meaning of “emergency treatment” under section 1725(f)(1) and section 1728(c) by defining emergency treatment as medical care or services furnished, in the judgment of VA: (A) when Department or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable; (B) when such care or services are rendered in a medical emergency of such nature that a prudent layperson reasonably expects that delay in seeking immediate medical attention would be hazardous to life or health; and (C) until such time (i) as the veteran can be transferred safely to a Department facility or other Federal facility and such facility is capable of accepting such transfer; or (ii) as a Department facility or other Federal facility accepts such transfer if at the time the veteran could have been transferred safely to a Department facility or other Federal facility, no Department facility or other Federal facility agreed to accept such transfer; and the non-Department facility in which such medical care or services was furnished made and documented reasonable attempts to transfer the veteran to a Department facility or other Federal facility. See 38 U.S.C. §§ 1725, 1728 (2012). In addition, effective January 20, 2012, VA regulations implementing 38 U.S.C. § 1725 and § 1728 were amended to conform to the statutory changes. See 76 Fed. Reg. 79,067-79,072 (December 21, 2011). The amendments affected the following Title 38 regulations: 38 C.F.R. §§ 17.120, 17.121, 17.1001, 17.1002, 17.1005, 17.1006, and 17.1008. All of the above elements must be satisfied for a claimant to qualify for payment or reimbursement. Zimick v. West, 11 Vet. App. 45, 49 (1998); Malone v. Gober, 10 Vet. App. 539, 544 (1997). That is, these criteria under 38 U.S.C. § 1728 and 38 C.F.R. §§ 17.120 -17.121 are conjunctive, not disjunctive; thus, all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334 (June 1991) (noting that use of the conjunctive “and” in a statutory provision meant that all of the conditions listed in the provision must be met); compare Johnson v. Brown, 7 Vet. App. 95 (1994) (providing that only one disjunctive “or” requirement must be met in order for an increased rating to be assigned). Both medical and lay evidence may be considered in a prudent layperson evaluation for determining what constitutes a medical emergency. That is, VA should weigh the totality of the circumstances to determine whether a prudent layperson would consider the situation emergent. Swinney v. Shinseki, 23 Vet. App. 257, 264-266 (2009) (emphasis added). In determining the claim at issue, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Upon review of the evidence, the Board finds that the requirements for payment or reimbursement for unauthorized medical expenses incurred during non-VA medical services provided at PeaceHealth on March 25, 2014, under the amended version of 38 U.S.C. § 1728, are not met. The claim is therefore denied. In this regard, the totality of the circumstances demonstrates that the Veteran’s private urgent care in question was not rendered in a “medical emergency” and VA facilities at the nearest VA Eugene Health Care Center, were feasibly available on the afternoon of March 25, 2014, under the amended versions of 38 U.S.C. §§ 1725(f)(1) and 1728(c). With regard to the feasible availability of a VA facility, under the analysis above for prior authorization, the reasons why VA facilities were determined to be feasibly available to the Veteran on the afternoon of March 25, 2014, were discussed in great detail. It is unnecessary to repeat the same analysis a second time. Therefore, the Board incorporates the analysis above concerning the feasible availability of a VA facility on March 25, 2014 into the present analysis for unauthorized treatment. 38 C.F.R. §§ 17.53, 17.120(c), 17.1002(c). Once again, the Board concludes that the nearest VA facilities were “feasibly available” to the Veteran on the afternoon of March 25, 2014. The Veteran’s treatment was procured through private sources in preference to available Government facilities, which is not permissible. See 38 C.F.R. § 17.130. With regard to the issue of what constitutes a “medical emergency,” under the prudent layperson standard, emergency treatment not previously authorized including medical services, professional services, ambulance services, ancillary care and medication (including a short course of medication related to and necessary for the treatment of the emergency condition that is provided directly to the patient for use after the emergency condition is stabilized and the patient is discharged) must be rendered in a medical emergency of such 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 is met by 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. 38 C.F.R. § 17.120(b) (2017). To determine whether a medical emergency existed, the Board must consider the claimant’s state of mind at the time he or she sought private treatment and evaluate the claimant’s actions in light of what a prudent layperson would do under the same circumstances. Swinney, 23 Vet. App. at 266. The totality of the evidence establishes that a medical emergency did not exist on the afternoon of March 25, 2014. A prudent layperson who possesses an average knowledge of health and medicine would not 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, on those five dates. 38 C.F.R. § 17.120(b). In fact, the Veteran sought “urgent care” treatment at PeaceHealth, which is not a private hospital or emergency department. See 38 C.F.R. §§ 17.120, 17.1002(a). With regard to lay evidence, on the afternoon of March 25, 2014, the Veteran as layperson reported to a VA nurse that his jaw was sore, it was difficult to keep food down, and his right ankle was swollen. The swelling had started that day. See VA telephone encounter note dated March 25, 2014, at 12:42pm in the afternoon. He believes the situation was a medical emergency. He states he required immediate antibiotics for an acute infection of the right leg. He says a physician at PeaceHealth told him he would have died or experienced “severe repercussions” if had waited until the next day to be treated. See December 2015 NOD; June 2016 VA Form 9. Although the Veteran is competent to report what a physician told him (see Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)), the Veteran’s assertion that a physician told him he would have died is not entitled to much probative weight here, given the unsupportive clinical findings below in contemporaneous, private PeaceHealth urgent care treatment records dated on March 25, 2014. With regard to medical evidence on the issue of whether a medical emergency existed, the Board has reviewed private clinical urgent care reports from PeaceHealth dated on March 25, 2014. When he arrived at PeaceHealth in the afternoon of March 25, 2014, his complaints included coughing, ear pressure, sinus pressure, and sinus pain, worsening over the past 3-5 days. He also had a history of chronic nausea and vomiting. But an earlier referral to a private gastroenterologist in February 2014 for these stomach problems had “fell through the cracks.” No ambulance was used to take the Veteran to the PeaceHealth facility. His wife had been driving him around for several hours that afternoon. Significantly, it was clinically noted he was “in no acute distress” upon arrival. He had no fever, no chills, no shortness of breath, no sore throat, and no abnormal vital signs. He was able to ambulate. The assessment was sinusitis, with a history of chronic nausea and vomiting with diabetes. His nose was swollen and he had fluid in his tympanic membranes. He was put on Bactrim DS and Tessalon for his sinus infection and coughing. He was referred to Eugene Gastroenterology for treatment of his stomach problems. He was only kept at PeaceHealth for a little over two hours, a relatively short period of time. With regard to medical evidence on the issue of whether a medical emergency existed, the Board has also considered the Emergency Severity Index (ESI) assessment by private medical personnel at PeaceHealth on the afternoon of March 25, 2014. The ESI is a tool for use in emergency department (ED) triage. The ESI triage algorithm yields rapid, reproducible, and clinically relevant stratification of patients into five groups, from level 1 (most urgent) to level 5 (least urgent). The ESI provides a method for categorizing ED patients by both acuity and resource needs. The triage acuity scales have five levels (1- resuscitation, 2- emergent, 3- urgent, 4- less urgent, and 5- nonurgent). That afternoon, the Veteran was assigned a triage level of three (3). A level three (3) patient is considered a stable but urgent patient, often requiring laboratory and radiology testing and medication for investigation or treatment, but are most often then discharged. See (ESI): A Triage Tool for Emergency Departments Version 4, available at http://www.esitriage.org. An example provided is a patient with abdominal pain or a patient with a high fever and a cough. In any event, the fact that private medical personnel did not assign a triage level of 1 (resuscitation) or 2 (emergent), provides some evidence against the Veteran’s claim. The above private clinical reports from PeaceHealth provide strong evidence against the existence of a medical emergency for the Veteran on the afternoon of March 25, 2014. They support a situation that was non-emergent and not severe. The Court has recognized the significant probative value of contemporaneous medical evidence. Curry v. Brown, 7 Vet. App. 59, 68 (1994). The Board finds the clinical PeaceHealth urgent care records on the issue of whether a medical emergency existed to be more probative than the Veteran’s lay assertions, and thus outweigh his lay statements. The Federal Circuit has held that the Board can favor competent medical evidence over lay statements offered by the Veteran, as long as the Board neither deems lay evidence categorically incompetent nor improperly requires a medical opinion as the sole way to prove causation. King v. Shinseki, 700 F.3d 1339, 1344 (2012). With regard to medical evidence on the issue of whether a medical emergency existed, the Board has also considered March 2016 and March 2017 VHA clinical opinions. The VHA clinicians opined that denial was appropriate in that the care was non-emergent for the Veteran under the prudent layperson standard on March 25, 2014. Both VHA clinicians reviewed and discussed the clinical evidence of record from PeaceHealth, discussing the Veteran’s denial of various symptoms. These VHA clinician opinions provide additional evidence against the existence of a medical emergency for the Veteran on March 25, 2014. There is no contrary medical opinion of record. Per the Swinney case, the Board has reviewed and discussed both the medical and lay evidence in a prudent layperson evaluation for determining what constitutes a medical emergency. In short, the totality of the evidence establishes that a medical emergency did not exist for the Veteran on the afternoon of March 25, 2014. A prudent layperson who possesses an average knowledge of health and medicine would not 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, on that evening. 38 C.F.R. § 17.120(b). The evidence of record does not paint a picture of an injury or symptoms “hazardous” to life or to health. There is no persuasive lay or medical evidence of record that a medical emergency existed on March 25, 2014, due to the Veteran’s sinusitis infection. Because the facts do not meet the “medical emergency” requirement for emergency treatment under 38 U.S.C. § 1728, payment or reimbursement by VA is prohibited. Accordingly, the Board finds that the preponderance of the evidence is against payment or reimbursement of unauthorized medical expenses incurred during non-VA medical services at PeaceHealth on March 25, 2014. 38 U.S.C. §§ 1728, 5107 (2012). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P.S. Rubin, Counsel