Citation Nr: 18159085 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-24 585A DATE: December 18, 2018 ORDER Entitlement to payment or reimbursement of unauthorized medical expenses incurred during a non-VA hospitalization at Gulf Coast Medical Center on November 7, 2015, is GRANTED. FINDINGS OF FACT 1. On the morning of Saturday, November 7, 2015, the Veteran was hospitalized at Gulf Coast Medical Center (a private facility) in Fort Myers, Florida. He was hospitalized for “acute” back pain and back spasms that were “constant” and “worsening.” He was treated with Vicodin and Dilaudid, and released several hours later. His back condition is a nonservice-connected disability. He has no health insurance. 2. The Veteran’s private hospitalization for a back condition on November 7, 2015, 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. 3. During the private hospitalization for a back condition on November 7, 2015, VA facilities were not feasibly available and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson. This finding is due to factors such as the urgency of the Veteran’s medical condition; the hospitalization occurred on a Saturday, such that nearby VA outpatient clinics were not open; and the relative distance of the travel involved to a VA Medical Center (VAMC) facility compared to the private facility. 4. There is no stabilization issue – in other words, on November 7, 2015, the Veteran did not remain at Gulf Coast Medical Center beyond the point of stabilization. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the criteria are met for payment or reimbursement of unauthorized medical expenses incurred during a non-VA hospitalization at Gulf Coast Medical Center on November 7, 2015. 38 U.S.C. §§ 1725, 5107; 38 C.F.R. §§ 17.53, 17.120, 17.130, 17.1002(b), (c). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty in the U.S. Marine Corps from July 1991 to October 1999. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 decision by the Department of Veterans Affairs (VA) Health Care System (HCS) in Bay Pines, Florida. The Veteran requested a Board videoconference hearing before a Veterans Law Judge in his May 2016 VA Form 9 (Substantive Appeal). However, he cancelled that request in December 2018, prior to the date of the hearing. Therefore, the Board videoconference hearing request is considered withdrawn. See 38 C.F.R. § 20.704(e) (2017). This appeal was processed using both a paper-based claims file and an electronic Veterans Benefits Management System (VBMS). VA’s Duty 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. To the extent the VCAA is applicable to the instant medical expenses reimbursement claim, the Board has considered its provisions. In any event, in the decision below, the Board has granted the Veteran’s claim for payment or reimbursement of unauthorized medical expenses. Therefore, the benefits sought on appeal have been granted in full. Accordingly, regardless of whether the notice and assistance requirements have been met with regard to this issue, no harm or prejudice to the Veteran has resulted. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. Medical Expense Reimbursement On the morning of Saturday, November 7, 2015, at around 10:16am, the Veteran was hospitalized at Gulf Coast Medical Center in Fort Myers, Florida. This is a private facility. He was 42 years old at the time. He was driven to the hospital by his fiancée. He was a walk-in patient. His chief complaint was left-mid back pain for the past 2-3 days. The back pain was in the form of muscle spasms. The pain was “worsening” and “constant.” It also worsened with movement. He could not sit down. Upon examination, palpable tenderness was elicited in the left paraspinal region from T6-T10. He said the severity of the pain was over 10/10. All other signs and symptoms were negative. He had been treated for his back pain at a VA outpatient clinic earlier in the week. But the medications he had been provided at the time were not helping with his back pain – Tylenol and prednisone and a muscle relaxer (Flexeril). The final diagnosis was chronic back pain. He was treated by ER personnel with Vicodin pain reliever, Dilaudid, and Zofran. His condition improved. He was given Vicodin to take home with him. He was instructed to follow up with the VA in two days. He remained at the private hospital for a little over two hours until discharge at 12:30pm. His back condition is a nonservice-connected disability. He has no health insurance. The Veteran did not receive written authorization from VA prior to this private hospitalization. It also appears from outstanding invoices that he owes the private hospital and associated providers at least $907.50 and $595.00 for its services that afternoon. The Veteran has requested reimbursement for his unauthorized medical expenses, contending that the private hospitalization at Gulf Coast Medical Center on the morning of November 7, 2015, 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 also asserts that the nearest VAMC in Bay Pines, Florida 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 to the VAMC facility vs. the private facility. The nearest VAMC was approximately 125 miles away that morning, whereas the private hospital was only a short distance away from his home. In addition, although the Veteran’s primary care doctor was located at the nearby Lee County VA Healthcare Center in Cape Coral, Florida, this VA outpatient clinic is closed on weekends. Thus, no VA facility was feasibly available. See January 2016 Notice of Disagreement (NOD); May 2016 VA Form 9; December 2018 representative statement (VA Form 646). In the January 2016 administrative decision on appeal and in the April 2016 Statement of the Case (SOC), VA denied the Veteran’s unauthorized medical expense claim. VA determined that his private hospitalization at Gulf Coast Medical Center on the morning of November 7, 2015, was non-emergent. In addition, the VA determined that VA facilities were feasibly available that morning, because he could have visited the VAMC in Bay Pines, Florida which is open 24 hours a day, 7 days per week. In short, VA concluded the Veteran did not meet the criteria for payment or reimbursement of non-VA medical treatment. The Veteran appealed this denial to the Board. Initially, under 38 U.S.C. § 1703, 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(a) (2012); 38 C.F.R. § 17.52(a) (2017). However, in this case, VA did not authorize or contract for Gulf Coast Medical Center on the morning of November 7, 2015 to provide the Veteran with no cost private care. The Veteran has never contended as such. Thus, the issue of prior authorization, as delineated by VA statute and regulation, is not applicable here. Regardless, 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 the instant case, because there is no dispute that the treatment in question was rendered for a nonservice-connected back condition, the Veteran is not eligible for payment or reimbursement of unauthorized medical expenses incurred at a non-VA facility for a service-connected disability under 38 U.S.C. § 1728(a). The Veteran has no service-connected disabilities. There is also no evidence or allegation he is participating in a vocational rehabilitation program under 38 U.S.C. Chapter 31, or that he had a total disability permanent in nature (P&T) resulting from service-connected disabilities, or that his nonservice-connected problems were associated with and aggravating service-connected disabilities, which in certain instances might have qualified him under 38 U.S.C. § 1728. See also 38 C.F.R. § 17.120(a). Consequently, the only possible route to entitlement to unreimbursed medical expenses in this case stems from 38 U.S.C. § 1725 – the Veterans Millennium Health Care and Benefits Act. Pursuant to the Veterans Millennium Health Care and Benefits Act, payment or reimbursement of non-VA emergency medical services for nonservice-connected disorders for veterans without insurance is available if certain conditions are met. 38 U.S.C. § 1725; 38 C.F.R. §§ 17.1000-17.1008. 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 hospitalization occurred in November 2015, 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). All 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. § 1725 and 38 C.F.R. § 17.1002(a)-(h) 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). In addition, effective January 20, 2012, VA regulations implementing these statutes 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. 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). The Veteran has already met many of the substantive and administrative prerequisites for payment or reimbursement of nonservice-connected medical care listed under 38 C.F.R. § 17.1002(a)-(h). That is, VA already determined the services in question were provided in a private hospital emergency department; the claim for reimbursement was timely filed by the private provider; the Veteran is financially liable to the private provider for treatment; the Veteran is without health insurance; the Veteran was enrolled in the VA health care system and had received medical services under authority of 38 U.S.C. Chapter 17 within the 24-month period preceding the furnishing of such emergency treatment; the back disability was not caused by an accident or work-related injury for purposes of third-party liability; the Veteran is not eligible for reimbursement under 38 U.S.C. § 1728 for a service-connected disability for the emergency treatment provided; and stabilization is not at issue because the Veteran was at Gulf Coast Medical Center for only a little over two hours on the day in question. See 38 C.F.R. §§ 17.1002(a)-(h), 17.1005. It follows that the central issues in the present case are the following: (1) Whether the Veteran’s private hospital care at Gulf Coast Medical Center on the morning of November 7, 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 life or health - i.e., was it an emergency; and (2) Whether a VA or other Federal facility/provider was feasibly available to the Veteran on the morning of November 7, 2015, and an attempt to use them beforehand would have been considered reasonable by a prudent layperson. See 38 U.S.C. § 1725(f)(1); 38 C.F.R. § 17.1002(b), (c). (Incidentally, VA’s authorization to make payment beyond the point of stabilization is not at issue here because the Veteran was only hospitalized for a little over two hours at Gulf Coast Medical Center on the morning of November 7, 2015, and was then discharged to be driven home by his fiancée in a private vehicle. See 38 C.F.R. §§ 17.53, 17.1005). Upon review of the evidence, the Board finds that the requirements under 38 U.S.C. § 1725 for payment or reimbursement for unauthorized emergency medical treatment on November 7, 2015, are met. In this regard, the totality of the circumstances demonstrates that the Veteran’s private hospitalization on November 7, 2015, was for a “medical emergency,” and that the nearest VAMC in Bay Pines, Florida, and the nearest VA outpatient clinic in Cape Coral, Florida, were not “feasibly available” to the Veteran that morning. In making this determination, the Board has considered whether “emergency treatment” under the prudent layperson standard within the meaning of section 1725(f)(1) was furnished to the Veteran that morning. 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). First, the Board will address whether a medical emergency existed on the morning of November 7, 2015. Second, the Board will address whether a VA facility was feasibly available to the Veteran on the morning of November 7, 2015. Under the applicable VA regulation, a medical emergency exists when 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. 38 C.F.R. § 17.1002(b). The Board finds the totality of the evidence (both medical and lay evidence of record) establishes that a medical emergency existed under the prudent layperson standard on the morning of November 7, 2015. It is shown 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. Id. With regard to favorable medical evidence on whether a medical emergency existed, the Board has considered private emergency room records from Gulf Coast Medical Center dated November 7, 2015. These records reflect that on the morning of Saturday, November 7, 2015, the Veteran was a walk-in patient at Gulf Coast Medical Center. He was driven to the hospital by his fiancée. His chief complaint was left-mid back pain for the past 2-3 days. The back pain was in the form of muscle spasms. The pain was “worsening” and “constant.” It also worsened with movement. He could not sit down. Upon examination, palpable tenderness was elicited in the left paraspinal region from T6-T10. He reported the severity of the pain was over 10/10. The differential diagnosis was “acute” muscle spasms. All other signs and symptoms were negative. He had been treated for his back pain at a VA outpatient clinic earlier in the week. The medications he had been provided at the time were not helping with his back pain – Tylenol and prednisone and a muscle relaxer (Flexeril). They provided no relief. The final diagnosis was chronic back pain. He was treated with Vicodin pain reliever, Dilaudid, and Zofran. His condition improved. He was given Vicodin to take home with him. He was instructed to follow up with the VA in two days. He remained at the private hospital for a little over two hours until discharge at 12:30pm. He was driven home by his fiancée. The Board emphasizes that the strong language utilized by private hospital personnel to describe the Veteran’s low back condition as “acute” and “constant” with a severity “over 10” is a factor in favor of whether a medical emergency existed for the Veteran on the morning of November 7, 2015. See again Swinney, 23 Vet. App. at 264-266. With regard to favorable medical evidence on whether a medical emergency existed, the Board has also considered the Emergency Severity Index (ESI) assessment by private medical personnel at Gulf Coast Medical Center on the morning of November 7, 2015. 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). The ER personnel at Gulf Coast Medical Center on the morning of November 7, 2015 assigned a triage level of four (4) for the Veteran. A level four (4) patient is considered a stable and “less urgent” patient, which is not supportive of the Veteran’s claim. However, on one of the November 2015 claims for reimbursement filed by Gulf Coast Medical Center (on a UB-04 CMS-1450), the emergency visit for the Veteran was assigned a triage level of (2). A level (2) patient is considered an “emergent” patient with a high risk for deterioration, or signs of a time-critical problem. See (ESI): A Triage Tool for Emergency Departments Version 4, available at http://www.esitriage.org. In any event, the level (2) emergency triage assigned to the current Veteran provides some evidence in support of an emergent situation that morning. With regard to favorable lay evidence of whether a medical emergency existed, the Veteran has for the most part credibly stated that the pain was “unbearable” and it was hard for him to move without pain. His medications were not working. He needed stronger pain medication from the VA outpatient clinic, but it was closed on the weekend. His pain was over 10/10. At times he was crawling to the bathroom. He was driven to the private hospital by his fiancée. He sincerely believes it was an emergency. When he visited the VA in the weeks after this private hospitalization, he was informed by VA medical personnel that his back problems may require surgery. See January 2016 NOD; May 2016 VA Form 9; December 2018 representative statement (VA Form 646). 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 Board has considered that a prudent layperson would seek immediate medical treatment with the level of back pain described by the Veteran that morning. Therefore, the Veteran’s lay assertions are competent and credible in describing the severity of his symptomatology on the morning of November 7, 2015. See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). As mentioned, the Veteran’s lay statements are for the most part consistent with the clinical findings in the ER records from Gulf Coast Medical Center. With regard to unfavorable evidence on whether a medical emergency existed, the Board has considered that some of the notations in the ER records from Gulf Coast Medical Center are not supportive of the Veteran’s claim. These notations indicate the Veteran’s condition was “less urgent” at level (4) per the ESI standard discussed above; the onset of back symptoms was for the past 2-3 days; the Veteran was negative for any other symptoms aside from severe back pain; he did not receive an IV in the arm; he was only at the private hospital for a little over two hours; and he did not need an ambulance. In addition, the Board has considered medical opinions from Veterans Health Administration (VHA) clinicians (a nurse and a chief medical officer (CMO) physician) dated in December 2015 and February 2016. These VA clinicians reviewed the record and opined that the Veteran’s private hospitalization on November 7, 2015 was not an emergency. The VHA clinicians discussed some of the factors listed above in providing their unfavorable medical opinions. In any event, the Board finds that the detailed and extensive private hospital reports and the Veteran’s lay statements outweigh the unfavorable VHA clinician opinions of record. The Board has determined that a prudent layperson would have sought medical treatment that Saturday in order to feel relief from severe back pain due to muscle spasms. VA treatment records dated from 2011 to 2015 and an April 2015 VA spine examination (on VBMS) document low back degenerative disc changes and a sacroiliac condition confirmed by X-rays. Thus, the clinical existence of the Veteran’s back condition is undisputed. Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value. See again Struck, 9 Vet. App. at 152. In summary, the above evidence weighs in favor of establishing that a medical emergency existed for the Veteran due to his severe back pain on the morning of November 7, 2015. See again 38 C.F.R. § 17.1002(b). The Board now turns to the issue of feasible availability. With regard to feasible availability, the admission of any patient to a private or public hospital at VA expense will only be authorized if a VA or other federal facility to which the patient would otherwise be eligible for admission is not feasibly available. 38 C.F.R. § 17.53. A VA facility may be considered as not feasibly available when the urgency of the 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. When non-VA care is authorized in such circumstances, the authorization will be continued after admission only for the period of time required to stabilize or improve the patient’s condition to the extent that further care is no longer required to satisfy the purpose for which it was initiated. Id. With regard to feasible availability, payment or reimbursement of the expenses of emergency treatment, not previously authorized, can be made when 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). 38 C.F.R. § 17.1002(c). With regard to feasible availability, although pertaining to treatment of service-connected disabilities, payment or reimbursement of the expenses of emergency treatment, not previously authorized, can be made when 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). No reimbursement or payment of services not previously authorized will be made when such treatment was procured through private sources in preference to available Government facilities. 38 C.F.R. § 17.130. The term VA medical facility of jurisdiction means the nearest VA medical facility to where the emergency service was provided. 38 C.F.R. § 17.1001(e). With regard to the feasibility availability of a VA facility, the Board concludes on the morning of November 7, 2015, the nearest VA medical facility was not feasibly available to the Veteran. See 38 U.S.C. § 1725(f)(1)(A); 38 C.F.R. §§ 17.53, 17.120(c), 17.1002(c). The factors that are relevant to this favorable finding in the present case are the following: the urgency of the Veteran’s back condition such that an attempt to go to a far-away VAMC would not have been reasonable, sound, wise, or practicable; the hospitalization occurred on a Saturday, such that nearby VA outpatient clinics were not open; and the relative distance of the travel involved from the Veteran’s home in Fort Myers, Florida, to the VAMC in Bay Pines, Florida, vs. the much shorter distance to the private Gulf Coast Medical Center. Id. 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). As to the geographical distance, this factor clearly weighs in the Veteran’s favor. Specifically, according to Google Maps, the distance from the Veteran’s home in Fort Myers to the nearest VAMC in Bay Pines is a two-hour and 15-minute drive (128 miles). This is quite a distance to travel in a vehicle while experiencing severe back pain. But in contrast, the Gulf Coast Medical Center is located in the same city as the Veteran’s home. Thus, it was only a short drive from his home that morning – specifically, an 11-minute drive (3.6 miles). As such, the drive to the private hospital was much quicker. It was clearly the more prudent path to take that morning, as “severe” back can be intolerable without the necessary pain medication to treat it. In addition, although the Veteran’s primary care doctor was located at the nearby Lee County VA Healthcare Center in Cape Coral, Florida, this VA outpatient clinic is closed on weekends. As to the urgency of the Veteran’s back condition on the morning of November 7, 2015, when considering feasible availability (see 38 C.F.R. § 17.53), as discussed in great detail above, it is undisputed that “immediate” medical attention was required as the Veteran’s back pain was hazardous to his life and health. The back pain was assessed as “acute” and “constant” and “over 10/10.” Thus, this factor weighs in the Veteran’s favor. With regard to the feasibility availability of a VA facility, the Board acknowledges that VHA clinicians provided negative opinions dated in December 2015 and February 2016 concluding that the VAMC in Bay Pines was feasibly available to the Veteran that morning. However, the Board’s conclusions must be based on evidence in the record and “must be justified by a clear statement of reasons or bases and not by the equivalent of ‘because I say so.’” Hood v. Brown, 4 Vet. App. 301, 303 (1993). In short, a VHA clinician or administrator must provide a rationale for any opinion provided. The Court has stated that an examination or opinion is adequate when it sufficiently informs the Board of a medical expert’s judgment on a medical question and the essential rationale for that opinion. Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012). Both VHA clinicians failed to discuss how the VAMC was feasibly available that morning if the drive was over two hours long, and the Veteran was experiencing severe back pain. To determine whether a VA facility was feasibly available, the focus should be on the symptomatology and thought processes of the Veteran on the day of the hospitalization in question. As such, the probative value of these VHA clinician opinions is limited. In summary, nearly all of the factors of feasible availability as listed under the applicable VA regulations weigh in the Veteran’s favor. A reasonable, prudent layperson could easily be seen to have chosen the private hospital in question for emergency treatment of severe back pain on the morning of November 7, 2015. 38 C.F.R. §§ 17.53, 17.120(c), 17.1002(c). Accordingly, the Board finds that payment or reimbursement of unauthorized medical expenses incurred during a non-VA hospitalization at Gulf Coast Medical Center on the morning of November 7, 2015 is warranted. 38 U.S.C. §§ 1725, 5107. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P.S. Rubin, Counsel