Citation Nr: 22012469 Decision Date: 03/04/22 Archive Date: 03/03/22 DOCKET NO. 19-09 723 DATE: March 4, 2022 ORDER The appeal for medical reimbursement for a January 11, 2018 emergency room visit at Spectrum Health Big Rapids Hospital (S.H.B.R.H) is granted. FINDING OF FACT On January 11, 2018, the Veteran contacted a VA triage nurse who advised he needed to go to an emergency room; the records reflect the Veteran would be going to S.H.B.R.H for treatment. CONCLUSION OF LAW The criteria have been met for medical reimbursement for the January 11, 2018 emergency room treatment at S.H.B.R.H. 38 U.S.C. §§ 1725, 1728, 5107; 38 C.F.R. §§ 17.53, 17.120, 17,121, 17.1000-17.1008. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1987 to March 1989. This matter comes before the Board of Veterans' Appeals (Board) from an April 2018 administrative decision by Veterans Health Administration (VHA) Office of Community Care. In June 2021, the Veteran appeared at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. 1. The appeal for medical reimbursement for a January 11, 2018 emergency room visit at Spectrum Health Big Rapids Hospital (S.H.B.R.H) is granted. The Veteran is seeking entitlement to medical reimbursement for a non-VA emergency room visit at S.H.B.R.H. on January 11, 2018. The Veteran contends he was provided authorization to seek medical care from a non-VA facility. The Veteran's claim was denied on the basis that there was VA or other Federal facilities available to provide the services. VA is authorized to reimburse veterans for emergency medical treatment under 38 U.S.C. § 1725 and 38 U.S.C. § 1728. Reimbursement or payment for expenses not previously authorized may be made only if each of the following criteria are met: (a) for veterans with service connected disabilities, treatment not previously authorized is rendered for (1) an adjudicated service-connected disability; or (2) a nonservice-connected disability associated with and held to be aggravating an adjudicated service-connected disability; or (3) any disability of a veteran who is permanently and totally disabled as a result of a service-connected disability; or (4) for any illness, injury or dental disability in the case of a veteran who is participating in a rehabilitation program under 38 U.S.C. Chapter 31; (b) such treatment was rendered in a medical emergency of such nature that delay would have been hazardous to life or health; and (c) VA or other Federal facilities were not feasibly available, and an attempt to use them beforehand would not have been reasonable, sound, wise, or practical. See 38 U.S.C. § 1728; 38 C.F.R. § 17.120. Failure to satisfy any one of the three criteria (a, b, or c) listed above precludes VA from paying unauthorized medical expenses incurred at a private hospital. 38 C.F.R. § 17.120; Zimick v. West, 11 Vet. App. 45, 49 (1998). The record reflects the Veteran is permanently and totally disabled as a result of his service-connected disabilities and the Board finds his treatment was rendered in a medical emergency and a VA facility was unavailable. Therefore, the Veteran meets the threshold criteria under 38 U.S.C. § 1728. In this case, the Veteran testified at his June 2021 Board hearing about his right hand and wrist injury. He testified that on January 11, 2018, he woke up and his hand and wrist were swollen to the point he could not make a fist and he was in a lot of pain. He contacted the VA triage hotline and the nurse advised him he would not be able to be seen at the VA until January 25, 2018, which was two weeks away. The VA triage nurse advised he go to the nearest emergency room. The Veteran's VA treatment records are relevant here. On January 11, 2018, as noted above, the Veteran contacted the VA triage hotline, and the VA treatment records confirm his testimony. The VA treatment records document the Veteran could not close his hand, the pain was more pronounced and worsening, and the wrist was swollen and tender to touch. The VA treatment records reflect the VA triage nurse noted "Recommend ER evaluation. Will present to Spectrum Big Rapids." The notes reflect the Veteran did injure his wrist approximately two weeks prior to January 11, 2018, but the pain has increased and the condition had worsened. The VA treatment records further note the recommended treatment to be "Now." The Veteran was seen at S.H.B.R.H. and the records reflect the Veteran had x-rays. The S.H.B.R.H. records reflect the diagnosis was acute de Quervain tenosynovitis of the right wrist and he was referred to Orthopedics and discharged home. Here, the Veteran's claim was denied on the basis there was VA or other Federal facilities available to provide the services and that the Veteran's claim did not meet the prudent lay person definition of an emergency. Both medical and lay evidence may be considered in a prudent layperson evaluation for determining what constitutes a medical emergency. That is, VA should weigh the totality of the circumstances to determine whether a prudent layperson would consider the situation emergent. Swinney v. Shinseki, 23 Vet. App. 257, 264-266 (2009) (emphasis added). Whether a VA facility was "feasibly available" is determined 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). 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. 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 Board finds that in consideration of the totality of the circumstances, it is understandable the Veteran chose to go to the non-VA emergency room, considering he notified the VA of his intention on January 11, 2018 when he contacted the VA triage line and the VA advised an appointment was unavailable for two weeks. The Veteran testified at his Board hearing the non-VA emergency room was closer than the VA facility. Of note, the Battle Creek VA facility is 73 miles from the Veteran's home and the non-VA emergency room is 19 miles from the Veteran's home. The Veteran followed the VA triage nurse line and they advised him to go to the emergency room. The evidence of record is ambiguous as to whether the Veteran was specifically told to go to a VA facility or local emergency room, as the VA treatment record shows the non-VA emergency room is mentioned in the notes from the triage call. As the Veteran's symptoms are reflective of an emergency, given his increased pain and worsening symptoms, and he clearly sought out assistance from the VA, a prudent layperson who possessed an average knowledge of general health and medicine would reasonably have expected that the absence of immediate treatment for the worsening pain would have placed the health of the Veteran in serious jeopardy or caused serious impairment to bodily functions. See 38 C.F.R. § 17.1002 (b). Additionally, as noted above, the Veteran contacted the VA triage call center and was advised to go to an emergency room due to his worsening medical condition. When, after consideration of all evidence and material of record in this case before the Department with respect to benefits under laws administered by the Secretary, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination in the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. (Continued on the next page) Finally, there is no indication that the Veteran does not meet the additional criteria for reimbursement for emergency treatment under 38 U.S.C. § 1728, nor has the VAMC made any such finding. See 38 C.F.R. § 17.1002 (d), (f)-(h). Accordingly, the Board finds that payment or reimbursement of unauthorized medical expenses incurred during a non-VA hospitalization on January 11, 2018 is warranted. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Mouzakis, Associate 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.