Citation Nr: 22015000 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 17-09 051 DATE: March 16, 2022 ORDER Payment or reimbursement of medical expenses incurred on December 25, 2015, at Chestnut Hill Hospital (CHH) 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 25, 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 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 December 25, 2015, at CHH 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 September 1965 to August 1968. This appeal is before the Board of Veterans' Appeals (Board) from a March 2016 decision of the VA Veterans Health Administration. In October 2021, the Veteran and his wife 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 nonVA medical center). Whether a VA facility was "feasibly available" depends on 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 December 25, 2015, at CHH is granted. The Veteran was seen at the CHH emergency room (ER) on December 25, 2015, for left scapular pain, with intermittent spasm, that began that morning upon waking, stating that the pain was so bad he was "bent over and could not move." He stated that he had had similar pain intermittently in the past, but that this was worse. He reported taking Tylenol and 2 baby aspirins, and that the pain resolved prior to arrival. He also reported that, the previous day, he had had excessive nausea with no vomiting and no pain, and symptoms resolving with Pepto. His symptoms were flagged for possible cardiovascular significance, and it was noted that his wife was concerned about his heart. The Veteran was evaluated at CHH, including with electrocardiography (EKG) and chest X-rays. It was noted that, given his extensive history and risk factorsincluding hypertension, hyperlipidemia, and hepatitisfurther cardiac workup was ordered. However, the Veteran stated that his pain was resolved and did not want further labs or evaluation, and wanted to leave. It was noted that the Veteran's treating physicians spoke with the Veteran and his wife regarding the risks of refusing evaluation, including death, but that he understood the risks and requested to leave against medical advice. As reflected its denial letters and November 2016 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. In determining that the Veteran's care was non-emergent, in the statement of the case, the AOJ stated "per clinical review, the patient left AMA before evaluation." As reflected in his November 2016 notice of disagreement, February 2017 substantive appeal, and October 2021 testimony before the Board, the Veteran asserts that, due to his pain and symptoms on December 25, 2015, he was worried he was having a heart attack. He and his wife testified that he was having very bad pains to his back and side, that his wife worried that the pain was related to a heart attack, and that they felt he needed to get to a hospital immediately. They further testified that there was no VA facility within a reasonable distance from their residence to visit during his emergency and that they were not sure that one would even be open or fully staffed, given that it was Christmas, but that CHH was only about 5 or 6 miles away. Affording the Veteran the benefit of the doubt, the Board finds that his condition on December 25, 2015, 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 and his wife's assertions of severe, acute left-side back pain occurring suddenly on the morning of December 25, 2015, and worrying that the Veteran was having a heart attack or other severe cardiac problem, are credible given the CHH records reflecting sudden severe left-side back pain that morning that the Veteran had never previously experienced, excessive nausea the previous day, and that his wife was concerned about his heart. Further supporting that the Veteran's condition was a medical emergency is the evaluation and assessments of his treating physicians at CHH who flagged symptoms for cardiac significance, performed EKG and chest-X-rays, and recommended further cardiac workup given the Veteran's extensive history and risk factors. In this regard, the Veteran, in leaving CHH, did so against medical advice, with his physicians explaining the risks of leaving without further workup, including death, given his symptoms and condition. The fact that, given his symptoms, the Veteran's physicians advised him not to leave the hospital before further cardiac workup supports, rather than weighs against, a finding that the Veteran's condition on December 25, 2015, 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 Board also finds that, given his pain and symptoms indicating a possible severe cardiac problem, 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. The nearest VA facility that provided emergency care, or that would have been open on a holiday, was approximately 38 minutes (12.6 miles) from the Veteran's residence; CHH was approximately 12 minutes (3.1 miles) away. Accordingly, payment or reimbursement of medical expenses incurred on December 25, 2015, at CHH must be granted. See 38 U.S.C. § 5107. Cynthia M. Bruce 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.