Citation Nr: 18160823 Decision Date: 12/27/18 Archive Date: 12/27/18 DOCKET NO. 16-24 991 DATE: December 27, 2018 ORDER Payment or reimbursement of medical expenses incurred on July 4, 2015, at Lehigh Regional Medical Center (LRMC) is granted. FINDING OF FACT A prudent layperson would have reasonably expected that delay in seeking immediate medical attention for the Veteran’s condition on July 4, 2015, 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. CONCLUSION OF LAW The criteria for payment or reimbursement of medical expenses incurred on July 4, 2015, at LRMC 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 June 1969 to August 1969. This appeal is before the Board of Veterans’ Appeals (Board) from a September 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 LRMC on July 4, 2015, for complaints of constipation for four days and inability to urinate since the day before. He reported that he had used laxatives, stool softener, and suppositories without relief. The Veteran was given a diagnosis of fecal impact, and was treated and discharged that day. As reflected in a September 2015 decision and an April 2016 statement of the case, the agency of original jurisdiction (AOJ) denied payment or reimbursement under 38 U.S.C. § 1725 on the bases that the Veteran’s episode of care was considered non-emergent, as delay in seeking treatment would not have been hazardous to life or health, and that VA medical facilities were feasibly available. The AOJ noted that the Veteran’s constipation symptoms had been for four days, that pain was not noted when he arrived at the LRMC ER, and that abdominal examination at the time of treatment had been normal. As reflected in his April 2016 substantive appeal, the Veteran asserts that, due to his condition, he felt that his life was in danger and that he required emergency care, and that the Bay Pines VA Medical Center (VAMC) was 120 miles away and he was in no condition to make a trip that distance. Resolving reasonable doubt in the Veteran’s favor, the Board finds that, considering his bowel problem, in combination with the inability to urinate since the day prior, his condition on July 4, 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. 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). While the AOJ’s decisions indicate that VA medical facilities were feasibly available to the Veteran for his condition on July 4, 2015, they do not identify which were. In this regard, the Board takes judicial notice that the date of the Veteran’s emergency was both a Saturday and a holiday; the closest VA facility to him, a Vet Center, was closed. The next closest facility, a VA Clinic, has extended hours Saturday until 4:30 P.M., but according to its own website, the 4th of July holiday may affect such hours. The Board also takes judicial notice that the closest VA hospital to the Veteran’s residence at the time with an emergency department is, as noted by the Veteran, the Bay Pines VAMC, which was approximately 123 miles, and 2 hours and 13 minutes, away; LMRC was approximately 7 miles and 15 minutes away. Given such distances and the Veteran’s condition at the time, and resolving reasonable doubt in his favor, the Board finds that a VA facility was not feasibly available to him during his emergency. Accordingly, payment or reimbursement of medical expenses incurred on July 4, 2015, at LRMC must be 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