Citation Nr: 21066853 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 17-00 064 DATE: November 2, 2021 ORDER Entitlement to reimbursement of the cost of non-Department of Veterans Affairs (VA) emergency care received at M.D. Hospital on December 3, 2015, 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 December 3, 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 further attempts to use one beforehand would not have been considered reasonable by a prudent layperson. CONCLUSION OF LAW The criteria for payment of medical expenses incurred on December 3, 2015, from M.D. Hospital are 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 January 1966 to January 1968. A Board hearing was held in October 2021. The Appellant is seeking reimbursement for medical expenses that were not covered by insurance for treatment at the M.D. Hospital on December 3, 2015. 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 such conditions at issue in this case are as follows: (a) The emergency services were provided in a hospital emergency department or a similar facility held out as providing emergency care to the public; (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 nonVA medical center). 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 a finding 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). Other factors to consider include whether a prudent layperson would consider an attempt to use a VA facility beforehand or obtain prior VA authorization for the services required would have been reasonable, sound, wise, or practicable, or whether treatment had been or would have been refused. 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 nonVA medical center. 38 C.F.R. §§ 17.120 (c), 17.1002(c).c The standard for determining an emergency is whether a prudent layperson would think a delay in treatment would be hazardous to life or health. The standard is not whether the delay actually would have been hazardous or whether medical professionals would, and did, find an emergency. 38 U.S.C. § 1725 (f)(1); Swinney v. Shinseki, 23 Vet. App. 257, 264-65 (2009). The Veteran has reported that he presented to the nonVA emergency department on December 3, 2015, due to severe pain, reported as 10/10, in the lower back and flank area. He explained that he had to crawl from bed to call his son to help and take him to the emergency room. He reported that he has a history of spinal fusion and the severe pain made him "very scared." He has also reported a history of kidney stones. He has reported that he remembered hearing VA automated messages instructing the caller to go to the nearest emergency room in case of emergency and at the Board hearing he presented documentation reflecting such which he had received in the mail from the VA. He has also stated that he called his primary care physician who is with the VA, and was told to seek emergency help on December 3, 2015. He has reported that the nearest VA facility is more than 20 miles away, whereas the nonVA emergency room is only four miles away, and that the pain was so severe he did not think he could make it to the VA facility, especially if there was traffic. The Board finds that the requirements of 38 C.F.R. § 17.1002 (a) and 17.1002(d)-(h) are met. Consequently, the sole issues before the Board are whether the Veteran's condition was emergent and whether VA facilities were feasibly available. The Veteran has competently and credibly reported that he sought emergency treatment after the onset of severe pain that he thought signified a serious condition, that he believed VA would agree with his seeking nonVA emergency treatment, and that he required the assistance of another person to get to the emergency room. He has reported that he passed a kidney stone after receiving medication in conjunction with the emergency treatment. In light of the reported symptomatology and need for assistance, the Board finds that a prudent layperson in similar circumstances would have reasonably expected that additional delay in seeking immediate medical attention would have been hazardous to life or health. The Board further finds that given the Veteran's need for assistance to obtain the emergency care, possibility of traffic, and reported severity of symptoms, it would not have been prudent or responsible for the Veteran to drive approximately 20 additional miles to seek medical attention through VA. Consequently, the Board also finds that VA facilities were not feasibly available to treat the Veteran's condition on December 3, 2015. Accordingly, payment or reimbursement for medical expenses incurred on December 3, 2015, is warranted based on the evidence of record. See 38 U.S.C. §§ 1703, 1725, 1728; 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120, 17.1002. In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Snyder, 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.