Citation Nr: 21026462 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 19-15 841A DATE: May 3, 2021 ORDER Payment of medical expenses incurred on September 4, 2017, at Ira Davenport Hospital (IDH) 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 September 4, 2017, 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 reasonable. CONCLUSION OF LAW The criteria for payment of medical expenses incurred on September 4, 2017, at IDH have been met. 38 U.S.C. §§ 1728, 5107; 38 C.F.R. § 17.120. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1987 to September 1989. This appeal is before the Board of Veterans' Appeals (Board) from a December 2017 decision of the VA Veterans Health Administration. In July 2020, the Veteran and his wife testified a Board hearing before the undersigned Veterans Law Judge. A transcript is included in the claims file. The Veteran seeks VA payment of expenses for treatment he received at IDH on September 4, 2017. At the time of this treatment, the Veteran had a permanent and total service-connected disability. In the absence of prior appropriate VA 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" 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 of medical expenses incurred on September 4, 2017, at IDH is granted. The Veteran was seen at the IDH emergency room (ER) on September 4, 2017, at approximately 9:30 pm for complaints of shooting pain in the left arm. The Veteran reported having had similar pain in the left arm about two months prior, occurring at that time three to four times over a three-minute period. A shooting pain through the shoulder and forearm occurred again that night, suddenly at 9 pm, while he was watching television, and lasted for about 30 seconds. The Veteran reported that he had no other symptoms such as shortness of breath or chest pains, but he was concerned and wanted to be sure that his pains were not due to a heart condition. A past medical history of kidney problems, hypertension, and deep vein thrombosis of the left leg was noted. Workup included physical examination, electrocardiogram (EKG), which was normal, and blood work. The diagnosis at discharge was left arm pain. As reflected in its December 2017 decision and April 2019 statement of the case, the agency of original jurisdiction denied payment or reimbursement under 38 U.S.C. § 1728 on the bases that the Veteran's episode of care was considered non-emergent, and that VA medical facilities were feasibly available. There is no indication in the record that any of the other criteria for payment under 38 U.S.C. § 1728 for the Veteran's claimed expenses were not met. As reflected in his November 2017 notice of disagreement and June 2019 substantive appeal, and in his July 2020 testimony before the Board, the Veteran asserts that the night of September 4, 2017, he experienced sudden pain radiating down his left arm for no apparent reason. Given his background as a registered nurse, he was concerned that it might be cardiac in nature and was worried for his life. The nearest VA facility to him was closed at that point, so he went to the nearest available non-VA ER. His wife testified that, after experiencing the episode of left arm pain, the Veteran immediately requested she take him to the hospital, and that he had been frightened by his left arm pain. Resolving reasonable doubt in his favor, the Board finds that the Veteran's left arm condition on September 4, 2017, 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 contentions that he was concerned his symptoms might be serious and heart-related are supported throughout the record, including in his and his wife's Board testimony and in the documented IDH ER notes. Furthermore, a reasonable person would have been concerned that a sudden shooting pain throughout the left upper extremity might involve a cardiac or other serious health issue; this is particularly the case given the Veteran's noted medical history of kidney problems, hypertension, and deep vein thrombosis of the left leg. The examination and testing the Veteran underwent at the IDH ER, including EKG and blood testing, further indicates that his treating physicians were at least somewhat concerned that he might have a cardiac or other serious health problem, which also supports his claim. 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 reasonable. The Board takes judicial notice that, as the Veteran has contended, the VA medical center closest to him was closed at the time of his medical emergency, and that there was no open VA facility that provided emergency care within an hour drive of the Veteran's residence. IDH was approximately 17 minutes (8.7 miles) from the Veteran's residence. Accordingly, payment of medical expenses incurred on September 4, 2017, at IDH must be granted. See 38 U.S.C. § 5107. Bethany L. Buck 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.