Citation Nr: 19152012 Decision Date: 07/03/19 Archive Date: 07/03/19 DOCKET NO. 16-60 218 DATE: July 3, 2019 ORDER Payment or reimbursement of medical expenses incurred on May 1, 2015, at CentraCare Health System (CHS) is granted. FINDING OF FACT A prudent layperson would have reasonably expected that delay in seeking immediate medical attention for the Veteran’s mouth condition on May 1, 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 May 1, 2015, at CHS 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 September 1978 to July 1979. This appeal is before the Board of Veterans’ Appeals (Board) from an August 2015 decision of the VA Veterans Health Administration. 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 CHS emergency trauma center on May 1, 2015, at approximately 7:30 p.m., for soreness and bleeding of the left tongue, on which he had recently had a lesion surgically removed. After examination, the assessment was soreness of the tongue postop, no sign of significant bleeding. The treating physician reassured the Veteran that at that point his tongue looked good, and that he should consider rinsing with salt water to keep the area clean and continue to follow up with his oral surgeon as scheduled. As reflected its August 2015 decision and an August 2016 statement of the case, the agency of original jurisdiction 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 February 2016 notice of disagreement and September 2016 substantive appeal, the Veteran asserts that he had had surgery at a VA facility two days before his treatment at CHS to remove a significant piece of his tongue and, on May 1, his stiches ripped open and he was bleeding significantly. He asserts that he went to CHS because his bleeding was so bad and he was concerned, and his closest VA facility was 45 minutes away and did not provide emergency treatment. Resolving reasonable doubt in his favor, the Board finds that the Veteran’s mouth condition on May 1, 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. Resolving reasonable doubt in the Veteran’s favor, the onset of significant bleeding and soreness from the location of surgical removal of a lesion or portion of his tongue from two days prior led the Veteran to reasonably believe that his condition was an emergency and required immediate treatment. The fact that the treating physician at CHS “reassured him that at this point [his tongue following surgery] looks good” indicates the Veteran’s concern regarding the condition of his tongue post-surgery, given the onset of his symptoms on May 1, 2015. The Board finds also that a VA-related medical facility was not 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 Board takes judicial notice that, from the Veteran’s residence, there was a VA clinic approximately 29 minutes (26 miles) away and a VA medical center approximately 48 minutes (42 miles) away; neither facility provides emergency treatment, and both had closed by the time that the Veteran sought treatment on the evening of May 1, 2015. CHS was approximately 3 minutes (0.5 miles) away from the Veteran’s residence. Under these circumstances, a VA facility was not feasibly available to the Veteran during his emergency. Accordingly, payment or reimbursement of medical expenses incurred on May 1, 2015, at CHS must be granted. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). [SIGNATURE ON NEXT PAGE] JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Andrew Mack, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.