Citation Nr: 18160542
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 16-18 403
DATE:	December 27, 2018
ORDER
Entitlement to payment or reimbursement of medical expenses incurred at Methodist Medical Center (MMC) on August 4, 2015 is denied.
FINDING OF FACT
A Department of Veterans Affairs (VA) medical facility was feasibly available for treatment of the Veteran’s left wrist condition on August 4, 2015; an attempt to use one before seeking treatment at MMC would have been considered reasonable by a prudent layperson.
CONCLUSION OF LAW
The criteria for payment or reimbursement of medical expenses incurred at MMC on August 4, 2015 are not met.  38 U.S.C. §§ 1728, 5107; 38 C.F.R. § 17.120.
REASONS AND BASES FOR FINDING AND CONCLUSION
The appellant is a Veteran who served on active duty from September 1966 to August 1969.  This appeal is before the Board of Veterans’ Appeals (Board) from an October 2015 decision of the VA Veterans Health Administration (VHA). In August 2016, a Travel Board hearing was held before the undersigned.  The Veteran was informed that VA was, unfortunately, unable to produce a transcript of the hearing due to an audio malfunction.  In July 2018, the Veteran informed VA that, despite this, he did not wish to appear at another hearing and wanted the Board to decide his case on the evidence of record.

Legal Criteria
In the absence of prior appropriate authorization under 38 C.F.R. §§ 17.53 and 17.54, 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).
Analysis
The Veteran is assigned a total rating based on individual unemployability due to service-connected disability related to diabetes mellitus, which he has been service-connected since 2001.
On August 4, 2015, the Veteran was seen at the MMC emergency room (ER) for complaints of left-sided wrist pain.  It was noted then that the Veteran had seen his VA primary care physician seven weeks prior, and it was suspected then that he had some type of bacterial infection; medication that helped with the swelling and pain was prescribed.  He related that he had an appointment with an orthopedic physician on August 14, but was taking 10 Vicodin tablets daily, and was no longer able to bear the pain.  He denied any falls or injuries.  He reported that his pain was severe and was worsening.  Following examination, including X-rays, the assessment was arthritis of the left wrist.  Anti-inflammatory pain medication was prescribed, and he was discharged.
As reflected an October 2015 decision and a March 2016 statement of the case, the agency of original jurisdiction (AOJ) denied payment or reimbursement under 38 U.S.C. § 1725 on the basis that VA medical facilities were feasibly available to treat the Veteran’s left wrist condition.
In his January 2015 notice of disagreement, the Veteran asserts that he received most of his medical care at his local VA facility and, on July 8, 2015, went to the urgent care department at a VA Medical Center (VAMC) for left wrist pain, was told it was arthritis; medication was prescribed.  He states that his VA primary care physician arranged an evaluation at the VAMC by an orthopedic surgeon, who referred him for surgery at another VAMC; he stated that, due to the distance to that VAMC and his pain, he saw a private surgeon for treatment, and was able to have it covered through non-VA coverage.  He asserts that he had to go to the MMC ER in August 2015 due to extreme pain, because he could not get to a local VA in time, and because VA medical treatment during his scheduled appointments had not worked for him.
Even considering the Veteran’s reports of severe left wrist pain on August 4, 2014, as described, the Board finds that a VA medical facility would have been feasibly available for treatment of the condition at the time, and an attempt to use one before seeking treatment at MMC would have been considered reasonable by a prudent layperson.  
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).  
The Board takes judicial notice that, from the Veteran’s residence, his local VA clinic, the Peoria Vet Center, is approximately 17 miles and 22 minutes away; MMC is approximately 10 miles and 14 minutes away.  Given these relative distances (and the approximately 8-minute difference in expected travel time), the Veteran’s assertion that he could not get to a local VA in time to treat his wrist pain (which had been ongoing for weeks but reportedly was worsening), is not persuasive.  This is particularly the case considering that the Veteran has acknowledged that he received most of his medical care at his local VA facility, and that on July 8, 2015, had gone to the urgent care department of a VA facility for the same left wrist pain condition. 
There are no other factors shown in the evidence that would have led a prudent layperson to believe that an attempt to use a VA facility before seeking treatment at MMC or obtaining prior VA authorization for the services required would not have been feasible, reasonable, sound, wise, or practicable, or that treatment had been or would have been refused.  While the Veteran has cited that VA medical treatment during his scheduled appointments had not worked for him as a reason he sought treatment at the MMC ER, such does not provide a legal basis for payment or reimbursement of expenses incurred at a non-VA facility under 38 U.S.C. § 1728 and 38 C.F.R. § 17.120.  See also 38 U.S.C. § 1725(f)(1)(A).
A preponderance of the evidence is against a finding that, on August 4, 2015, a VA medical facility was not feasibly available for treatment of the Veteran’s left wrist disability prior to his seeking treatment at the MMC ER, or that an attempt to use a VA facility beforehand would have been considered unreasonable by a prudent layperson.  Accordingly, the appeal seeking payment or reimbursement of medical expenses incurred on August 4, 2015, at MMC must be denied.  See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
 
GEORGE R. SENYK
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Andrew Mack, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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