Citation Nr: 18157341 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 16-23 837 DATE: December 12, 2018 ORDER Payment or reimbursement of medical expenses incurred on December 20, 2014, at Englewood Community Hospital (ECH) is granted. FINDINGS OF FACT 1. A prudent layperson would have reasonably expected that delay in seeking immediate medical attention for the Veteran’s condition on December 20, 2014, would have been hazardous to life or health; a Department of Veterans Affairs (VA)-related medical facility was not feasibly available during his emergency, and an attempt to use one beforehand would not have been considered reasonable by a prudent layperson. 2. At the time of such treatment, the Veteran had a total disability, permanent in nature, resulting from a service-connected disability. CONCLUSION OF LAW The criteria for payment or reimbursement of medical expenses incurred on December 20, 2014, at ECH have been met. 38 U.S.C. §§ 1728, 5107; 38 C.F.R. § 17.120. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1966 to May 1969. This appeal is before the Board of Veterans’ Appeals (Board) from an April 2015 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 who has a total disability, permanent in nature, resulting from a service-connected disability is entitled to payment or reimbursement of unauthorized medical expenses incurred at a non-VA facility 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 Veteran has had a total disability, permanent in nature, resulting from a service-connected disability, since 2002. The record reflects that the Veteran was seen at the ECH emergency room (ER) on December 20, 2014, for complaints of shortness of breath. According to the notes from ECH, he had longstanding chronic obstructive pulmonary disease (COPD), and that for a month he had been more short of breath than usual with a cough. It was noted that he had “been to the VA a few times and they told him they need to do something, but they never really did anything so he more or less came [to ECH].” It was further noted that his current inhaler and nebulizer treatment did not seem to be working, and that he was “basically [at ECH] because he can’t get any satisfaction at his regular medical care.” During his treatment at ECH, his condition was noted to improve, and he was given a prescription for a nebulizer and unit doses, a tapering dose of steroids, and a Z pack to see if these improved his overall condition. At discharge, the impression was acute exacerbation of COPD with dyspnea and wheezing. As reflected an April 2015 decision and a March 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, he had gone to ECH because he was angry at his VA clinic, and VA medical facilities were feasibly available. As reflected in his June 2015 notice of disagreement and March 2016 substantive appeal, the Veteran asserts that on December 20, 2014, he went to ECH because he had a serious respiratory problem, a high temperature, a lot of coughing, and wheezing so bad that it was very hard to catch his breath. He states that he had had the same problem a month earlier, but not as bad. The Veteran asserts that, although he was not happy with his VA clinic, his treatment at ECH had nothing to do with that and was not because he was angry with his clinic; he went to a non-VA facility because he believed his health was in serious trouble. He states that, while he was being treated at the VA clinic for his COPD symptoms, the treatment was not helping his symptoms, his breathing became more difficult, and he had been up all night the night before his treatment at ECH and was afraid and thought his health was in serious trouble. Resolving reasonable doubt in the Veteran’s favor, the Board finds his statements regarding the acute severity of his COPD symptoms, including his coughing and increased difficulty breathing on December 20, 2014, to be credible. It was noted at ECH that the Veteran was “basically [at ECH] because he can’t get any satisfaction at his regular medical care” at his local VA clinic; however, the Veteran acknowledged expressing his dissatisfaction with his local VA care, but stated that reason for the ECH ER visit nonetheless was because he believed his health was in serious trouble. The ER records from ECH corroborate that the Veteran was suffering what was determined to be an acute exacerbation of COPD symptoms with dyspnea and wheezing, which improved prior to discharge, and thus tend to support that he reasonably believed his condition was an emergency. Resolving reasonable doubt in his favor, the Board finds that the Veteran’s respiratory condition on December 20, 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. 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). 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). As noted above, the Board finds credible the Veteran’s assertions regarding the acute severity of his COPD symptoms, including his coughing and increased difficulty breathing, on December 20, 2014. The Board furthermore takes judicial notice that, from the Veteran’s residence at the time, ECH was approximately 10 minutes away; his regular, and closest, VA clinic was approximately 30 minutes away; and the VA Medical Center closest to him—the closest VA facility that provided emergency care—was approximately 1 hour and 30 minutes away. Given this, resolving reasonable doubt in the Veteran’s favor, a VA facility was not feasibly available to a Veteran during his emergency. Accordingly, payment or reimbursement of medical expenses incurred on December 20, 2014, at ECH 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