Citation Nr: 21075969 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 17-33 466 DATE: December 22, 2021 ORDER Payment or reimbursement of medical expenses incurred on October 15, 2016, at Citrus Memorial Hospital (CMH) is granted. FINDINGS OF FACT 1. At the time of his March 15, 2016, treatment at CMH, the Veteran had a permanent and total service-connected disability. 2. A prudent layperson would have reasonably expected that delay in seeking immediate medical attention for the Veteran's condition on October 15, 2016, 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 or obtain prior VA authorization for the services required would not have been reasonable, sound, wise, or practicable by a prudent layperson. CONCLUSION OF LAW The criteria for payment or reimbursement of medical expenses incurred on October 15, 2016, at CMH are met. 38 U.S.C. §§ 1728, 5107; 38 C.F.R. § 17.120. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1966 to June 1968. This appeal is before the Board of Veterans' Appeals (Board) from a May 2017 decision of the VA Veterans Health Administration. The Veteran requested and was scheduled for a hearing before the Board, which was to take place in October 2021. While the Veteran's attorney reported for the hearing, the Veteran did not. In November 2021, the Veteran asserted that he did not receive notice of the hearing date until after the date had passed, and requested that the Board reschedule the hearing. However, as the Veteran's attorney received notice of the hearing and was aware of the scheduled date, the Veteran was on notice of the hearing date, and any assertion of not receiving timely notice is not good cause to reschedule a Board hearing. See 38 C.F.R. § 20.603(d). Moreover, as the Board is granting the benefit sought on appeal, the issue of holding a Board hearing on the matter is moot. In the absence of prior authorization, under 38 U.S.C. § 1728, a Veteran who has a total disability, permanent in nature, resulting from a service-connected disability is entitled to payment or reimbursement of unauthorized medical expenses incurred at a non-VA facility when it is also shown that (1) the services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health, and (2) no VA or other Federal facilities were feasibly available and an attempt to use them beforehand would not have been reasonable. 38 U.S.C. § 1728; 38 C.F.R. § 17.120. The provisions of 38 U.S.C. § 1728 are implemented under 38 C.F.R. §§ 17.120-32. For payment under 38 U.S.C. § 1728, the following conditions must be met: Treatment must be rendered in a medical emergency 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 a situation involved 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. 38 C.F.R. § 17.120(b). VA or other Federal facilities that VA has an agreement with to furnish health care services for veterans were not feasibly available, and an attempt to use them beforehand or obtain prior VA authorization for the services required would not have been reasonable, sound, wise, or practicable, or treatment had been or would have been refused. 38 C.F.R. § 17.120(c). The determination of whether a VA facility was "feasibly available" is 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). Payment or reimbursement of medical expenses incurred on October 15, 2016, at CMH is granted. The Veteran was seen at the CMH emergency room (ER) on October 15, 2016, for severe back pain that reportedly began that morning at 8 AM. He reported having had back surgery 10 years prior, but being pain free since until that day. The triage nurse observed the Veteran grimacing, breathing heavily, and requesting pain medications immediately. Further ER notes reflect that the Veteran presented with back pain and lumbar pain, and that "[t]he onset was 10 days ago" and triggered by standing, and that the course/duration of symptoms was worsening. It was noted that the Veteran woke up that morning with severe pain radiating into the left lower extremity, and that he had a history of lumbar surgery, but no injury prior to exacerbation that morning. Symptoms were sharp and stabbing. Degree at onset and at present was severe. General examination revealed the Veteran to be in severe distress, and he was observed to be moaning and crying out in the waiting area. Following evaluation, diagnoses included muscle spasm of back, acute lumbar radiculopathy, and acute low back pain. The Veteran was discharged with a prescription for oxycodone. At the time of the October 15, 2016, treatment, the Veteran had a permanent and total service-connected disability. As reflected its December 2016 decision and February 2017 statement of the case, the agency of original jurisdiction (AOJ) denied payment under 38 U.S.C. § 1728 on the basis that VA medical facilities were feasibly available. Specifically, as explained in the statement of the case, the AOJ noted that the Veteran had presented to the ER with back pain with onset 10 days prior to visit; however, he had been treated in a VA clinic the day before his ER visit, where his back pain could have been evaluated and treated, but there was no documentation to indicate any attempt to be seen for back pain. As reflected in his December 2016 notice of disagreement and May 2017 substantive appeal, the Veteran asserts that his back condition on October 15, 2016, was a medical emergency, and that he was unable to drive to the nearest VA emergency department at that time, which was two and a half hours away from his residence. Resolving reasonable doubt in his favor, the Board finds that the Veteran's back condition on October 15, 2016, 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. It further finds 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. Regarding the AOJ's finding that the Veteran's back pain had its onset 10 days prior to his ER visit at CMH, the record reflects that the Veteran had had treatment in a VA clinic as recently as October 14, 2016the day before his ER visitfor medical issues unrelated to back pain, and with no complaint or mention of back pain at the time. However, close inspection of the CMH ER notes reflects that the notation of onset of back pain "10 days ago" was very likely a mistake. As noted above, triage notes contain the contradictory report that the Veteran's pain had begun that morning, although he had had back surgery 10 years before. Also, the section of the ER records noting onset 10 days before also state in contradiction, within two sentences, that the Veteran woke up that morning with severe pain radiating into the left lower extremity, and that he had a history of lumbar surgery, but no injury prior to exacerbation that morning. Given this, and the rest of the ER notes as a whole, it appears that the report of back problems 10 years prior was mistakenly noted as back pain 10 days prior in one section of the CMH ER notes, and that the Veteran had in fact reported that severe back pain had had a sudden onset on the morning of October 15, 2016. Furthermore, the CMH records clearly establish that at the time of his October 15, 2016, ER visit, the Veteran was having an episode of severe back pain; he was evaluated as being in "severe distress" with observations of the Veteran grimacing, breathing heavily, requesting pain medications immediately, and moaning and crying out in the waiting area, and discharge with a prescription for oxycodone. In this regard, VA treatment records following the ER visit, beginning October 17, 2016, reflect that the Veteran continued to report severe back pain that had begun on the day of his ER visit, and that he sought VA follow-up treatment for the problem. The Board takes judicial notice, moreover, that the nearest VA medical facility providing emergency care was located over one hour and over 60 miles from the Veteran's residence; CMH was approximately six minutes and less than two miles from the Veteran's residence. Given the above, and resolving reasonable doubt in the Veteran's favor, the Board finds that the March 15, 2016, emergency care at CMH was rendered in a medical emergency of such nature that delay would have been hazardous to life or health, and no VA or other Federal facilities were feasibly available and an attempt to use them beforehand would not have been reasonable. Accordingly, payment or reimbursement of medical expenses incurred on October 15, 2016, at CMH must be granted. See 38 U.S.C. § 5107. 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.