Citation Nr: 19120252 Decision Date: 03/21/19 Archive Date: 03/20/19 DOCKET NO. 15-11 914 DATE: March 21, 2019 ORDER Payment or reimbursement of medical expenses incurred on June 9, 2014, at Venice Regional Bayfront Health (VRBH) is denied. FINDING OF FACT The Veteran’s foot pain condition on June 9, 2014, was not such that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention for would have been hazardous to life or health, Department of Veterans Affairs (VA)-related medical facilities were feasibly available for treatment of his condition on that date, and an attempt to use one beforehand would have been considered reasonable by a prudent layperson. CONCLUSION OF LAW The criteria for payment or reimbursement of medical expenses incurred on June 9, 2014, at VRBH have not 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 July 1970 to March 1972. This appeal is before the Board of Veterans’ Appeals (Board) from a July 2014 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 determination of whether a VA facility was “feasibly available” must be made after consideration of such factors as the urgent nature of the veteran’s medical condition and the length of any delay that would have been required to obtain treatment from a VA facility. Cotton v. Brown, 7 Vet. App 325, 327-28 (1995). Regarding the relative distance of the travel involved, the Board may take judicial notice of facts, as compared to evidence, which are not subject to interpretation. See Yeoman v. West, 140 F.3d 1443 (Fed. Cir. 1998); Dedicatoria v. Brown, 8 Vet. App. 441 (1995). The Veteran was seen at the VRBH emergency room (ER) on June 9, 2014, at 3:57 P.M., for complaints of bilateral bottom of foot pain with duration of 2 years, which he related to a failed back surgery 19 years prior. He reported that it hurt when he took his shoes off. The Veteran was noted to have been a walk-in, and stated that had been able to drive himself to the hospital. He was noted to appear uncomfortable, complaining of pain in both feet that was currently, and at its worst, 5 out of 10; it was noted that, at their worst, the symptoms were moderate. Quality of pain was described as aching, and it was noted that it had begun years prior. The Veteran expressed concern that his symptoms may be peripheral neuropathy. The Veteran’s feet were examined, and he had pain, worse on the right and mild on the left, and some numbness and tingling. No medication was administered, and he was discharged ambulatory. The assessment was foot pain and follow-up with his VA provider was recommended, as well as assessment with a podiatrist and perhaps neurologist for nerve studies. As reflected a July 2014 decision and a March 2015 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 the Veteran had had his foot pain for 2 years, and that VA medical facilities were feasibly available, as his local VA clinic was open at the time but he did not attempt to call it. In his August 2014 notice of disagreement, the Veteran asserted that he went to the VRBH ER because he could no longer walk without severe pain. He stated that he complained for a year and a half to his caregiver, but that no appointments to check his feet were ever made until after he had to go to the emergency room. He further asserted that a podiatrist had since diagnosed severe dead nerves in the bottom of both feet causing severe pain when he walked, and that he needed to wear sneakers with special inserts every time he got out of bed. In his April 2015 substantive appeal, the Veteran asserted that on the morning of June 9, 2014, he woke up in severe pain and had to use his walker go to the bathroom, and that it had been painful to touch the sheets on his bed with his toes. He stated that going to the ER finally got the attention of his caregiver and got him to direct the Veteran to a specialist, and that his diagnosis was increasing pain on the foot bottoms to toes from dead nerves, getting worse with age. The Veteran’s claim for payment or reimbursement must be denied. Initially, the record does not show, and the Veteran has not explained, why a person would reasonably expect the absence of immediate medical attention for his foot pain on June 9, 2014, might result in placing his health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. According to both the VRBH ER notes and the Veteran’s own statements, his foot pain had been on ongoing condition for a period of years, during which time he had repeatedly made complaints to his doctor about the condition. The record does not reflect that the Veteran was experiencing any particular emergency involving his foot pain on July 9, 2014. The Board notes the Veteran’s assertions that on June 9, 2014, his feet were in severe pain, and that he was having difficulty walking. However, the VRBH notes appear to contradict this assertion, documenting that the Veteran reported that his pain had been for 2 years; he was a walk-in and had been able to drive himself to the hospital; he complained that his pain was 5 out of 10 at its worst; his symptoms were noted to be moderate at worst; and, on examination, while pain was worse in the right foot it was mild in the left. Furthermore, while the Veteran has asserted that he went to the VRBH ER because on the morning of June 9, 2014, he woke up in severe pain and had to use his walker go to the bathroom, he did not arrive at VRBH until 3:57 P.M. The Board takes judicial notice that, while VRBH is approximately 4 miles and 12 minutes from the Veteran residence, the nearest VA medical facility is approximately 20 miles and 32 minutes from his residence. However, the record does not show—and the Veteran has not explained—why this or any other VA facility was not feasibly available to treat his foot pain condition, and why an attempt to use one beforehand or obtain prior VA authorization for the services required would not have been reasonable. This is particularly the case given that the Veteran had been experiencing, and reporting to his medical provider, foot pain for well over a year. Rather, as reflected in the Veteran’s statements and consistent with the VRBH ER notes, it appears that he sought treatment at VRBH after what he perceived as unsatisfactory results from reporting his foot problems to his regular medical care provider, and that after such ER visit his provider finally referred him to a podiatrist. Such treatment does not meet the requirements for reimbursement under 38 C.F.R. § 17.120(b) and (c). Therefore, the weight of the evidence is against a finding that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention for the Veteran’s condition on June 9, 2014, would have been hazardous to life or health, or that a VA-related medical facility was not feasibly available for treatment of his foot pain condition on that date, and an attempt to use one beforehand would not have been considered reasonable by a prudent layperson.   Accordingly, payment or reimbursement of medical expenses incurred on June 9, 2014, at VRBH must be denied. 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