Citation Nr: 21011161 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 15-17 728 DATE: March 1, 2021 ORDER Payment or reimbursement of medical expenses incurred on March 29, 2014, at Blake Medical Center (BMC) 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 March 29, 2014, 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 March 29, 2014, at BMC 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 February 1993 to December 1995. This appeal is before the Board of Veterans’ Appeals (Board) from an April 2014 decision of the VA Veterans Health Administration. In January 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript is included in the claims file. 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). Payment or reimbursement of medical expenses incurred on March 29, 2014, at BMC is granted. The Veteran was seen at the BMC emergency room (ER) on March 29, 2014, at 6:07 am for complaints of a pilonidal abscess that appeared to be getting bigger. At the time, he reported having an appointment with VA that afternoon, but that he wanted something sooner. As reflected an April 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 and that VA medical facilities were feasibly available, as the Veteran had an appointment at VA the same day. Associated with the record are VA appointment logs reflecting that the Veteran had, on March 27, 2014, scheduled an appointment with VA for March 29, 2014, but that the appointment had been cancelled by the Veteran the morning of March 29, noting that the Veteran was in the hospital. As reflected in his May 2014 notice of disagreement, April 2015 substantive appeal, and January 2021 testimony before the Board, the Veteran asserts that, the morning his visited the BMC ER, at 6 am, his tailbone area was bleeding excessively, seemed infected, and was causing great pain which caused him not to be able to walk, and he believed that it needed immediate medical attention and that he had to visit the closest ER. He testified that the closest VA hospital to him was 35 to 40 minutes away, while BMC was 5 minutes away. Resolving reasonable doubt in his favor, the Board finds that the Veteran’s abscess condition on the morning of March 29, 2014, 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. The Veteran’s description of his condition—with bleeding, infection, and great pain causing inability to walk—is reasonably consistent with the condition noted in the March 29, 2014, BMC ER records. The record indeed reflects that the Veteran, on March 27, scheduled an appointment with a VA clinic for the afternoon of March 29, and cancelled the appointment once he was at BMC that morning. However, such facts are reasonably consistent with a condition, for which the Veteran scheduled an appointment at a VA facility, that had worsened in severity to the level described by the Veteran and become a medical emergency by the morning of March 29. The fact that Veteran had waited two days for his appointment with VA, but felt, the morning of the appointment, that he needed to visit an ER for the condition and could not make it to the appointment, is consistent with a condition that had increased in pain and symptomatology to the point of being, to a prudent layperson, a medical emergency requiring immediate attention. The BMC ER notes, in this regard, indicate that while the Veteran had an appointment that afternoon at a VA facility—which he had scheduled two days prior—he felt he could not wait any longer for treatment. 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. Consistent with the Veteran’s assertions, the closest VA Medical Center that provided emergency care was approximately 52 minutes (36.4 miles) from the Veteran’s residence, while BMC was approximately 12 minutes (5.3 miles) away. Accordingly, payment or reimbursement of medical expenses incurred on March 29, 2014, at BMC 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.