Citation Nr: 19124652 Decision Date: 04/02/19 Archive Date: 04/02/19 DOCKET NO. 16-01 073 DATE: April 2, 2019 ORDER Payment or reimbursement of medical expenses incurred on November 17, 2014, at Sarasota Memorial Hospital (SMH) is denied. FINDING OF FACT A prudent layperson would not have reasonably expected that delay in seeking immediate medical attention for the Veteran’s left elbow abcess condition on November 17, 2014, would have been hazardous to life or health, a Department of Veterans Affairs (VA)-related medical facility was feasibly available to treat this condition, 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 November 17, 2014, at SMH 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 September 1980 to August 1989. This appeal is before the Board of Veterans’ Appeals (Board) from a January 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 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 SMH emergency room (ER) on November 17, 2014, reporting that he was “. . . concerned re abscess beginning adjacent to the one drained on 11/1.” He was noted to have had a history of diabetes. On examination, the Veteran had superficial pimple of the left lateral elbow. He was discharged with a diagnosis of cellulitis, with prescription Bactrim DS. As reflected a January 2015 decision and a November 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, and that VA medical facilities were feasibly available. As reflected in his March 2015 notice of disagreement and November 2015 substantive appeal, the Veteran asserts that he is a diabetic and had been seen for left elbow cellulitis at the SMH ER on November 1, 2014. He asserts that it reoccurred on November 11, 2014, and that he called his local VA outpatient clinic that day, got an answering machine, and left a message that his elbow was inflamed, red, and warm with pus, and that he needed additional antibiotics. After not hearing back from VA for 3 or 4 days, he knew he needed antibiotics, so he returned to the SMH ER, on November 17, where his abcess was lanced and he received antibiotics. He asserts that VA only contacted him a week later, at which time he told them that he had to go to the SMH ER where he was given another prescription for Bactrim. He also submitted articles regarding the danger of staph infections. The Veteran’s claim must be denied in this case as the evidence does not demonstrate that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention for the Veteran’s condition on November 17, 2014, would have been hazardous to life or health or that a VA medical facility was not feasibly available to treat the Veteran’s condition. While the Veteran has asserted that he contacted his local VA clinic regarding his left elbow condition on November 11, 2014, he has not explained—and the record does not reflect—why, if he believed his condition was an emergency: waited to visit the ER until Monday, November 17, 2014; made no attempts to follow-up with calls or other contact with the VA clinic after leaving a message; and made no attempts to visit that VA clinic, or another, in person to address his supposedly emergent condition. Furthermore, a VA-related medical facility was feasibly available to treat the Veteran’s left elbow and an attempt to use one would have been considered reasonable by a prudent layperson. The Board takes judicial notice that, from the Veteran’s residence, while SMH was approximately 9 minutes (2.4 miles) away, the Veteran’s local VA clinic was only approximately 17 minutes (7.2 miles) away. Again, while the Veteran asserts calling the VA clinic nearly 1 week prior to the SMH ER visit about his elbow condition, leaving a message, and receiving no reply until after his ER visit, there is no explanation for why the Veteran would not have made more than one attempt to contact that VA clinic during that time period or simply visited that or another VA clinic to treat his condition. In this regard, the Veteran’s ER visit was at approximately 2:00 P.M. on a Monday, hours during which a VA clinic was available. Moreover, the records are not consistent with the Veteran’s account of calling and leaving a message with VA on November 11, or within the week prior to November 17, 2014. They also contradict his account of VA contacting him a week later, at which time he told them that he had to go to the SMH ER where he was given another prescription for Bactrim. VA medical records, while noting several instances of telephone communication between the VA clinic and the Veteran during November 2014, as well as contact from SMH within a day of the Veteran’s ER visit, show no indication of any messages or telephone calls or other communication from the Veteran on November 11 or within the week prior to his November 17, 2014, ER visit. Also, such VA records and the SMH ER records do not reflect that the Veteran mentioned any such prior attempt to contact VA to either SMH or VA, including when he first communicated with VA on November 18 regarding his ER treatment the previous day and request for additional Bactrim. Rather, the records reflect that the Veteran contacted the VA clinic on November 18, 2014—not the other way around, as asserted by the Veteran—reporting his recent treatment at SMH for abscess, stating that he now had a new bump rising close to where the other bump had been by his elbow, and requesting additional Bactrim; it was noted that the records from SMH had been obtained, that the Veteran was informed he would need to come in for an appointment, and that he was offered an appointment that day, but that he stated that he had he had gone to the ER for additional treatment. Such facts contradicting the Veteran’s account of his ongoing communication with VA regarding his elbow abscess condition and treatment at SMH undermine his credibility in reporting his communication with VA. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (in analyzing credibility, the Board is justified in taking into account multiple factors, including lack of contemporaneous medical evidence, possible bias, and inconsistencies within the record). Therefore, 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 left elbow abcess condition on November 17, 2014, would have been hazardous to life or health, and that a VA medical facility was not feasibly available to treat such condition at that time. Accordingly, payment or reimbursement of medical expenses incurred on November 17, 2014, at SMH 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