Citation Nr: A21016311 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 200318-179631 DATE: October 4, 2021 REMANDED Entitlement to reimbursement of expense for non-VA medical services provided to the Veteran on December 3, 2019 is remanded. Entitlement to reimbursement of expense for non-VA medical services provided to the Veteran on December 9, 2019 is remanded. REASONS FOR REMAND This matter is before the Board of Veterans' Appeals (Board) pursuant to two VA Form 10182 Decision Review Requests: Notice of Disagreement (NOD), both submitted by the appellant and received by the Board on the same day in March 2020. On each VA Form 10182, Decision Review Request: Board Appeal, the appellant elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decisions on appeal. 38 C.F.R. § 20.301. The appellant in this matter is the non-VA vendor who provided the medical services in question to the Veteran on December 3, 2019 and December 9, 2019. See 38 U.S.C. § 1703. The first NOD identified the date of decision on appeal as December 19, 2019, and the issue as "claim was denied stating missing prior authorization." While the record does not include a document dated December 19, 2019 which could be clearly understood as a decision, the appellant included several attachments with the facsimile of the 10182 that identify the date of service for which payment is being sought as December 3, 2019. The second NOD identified the date of decision on appeal as December 23, 2019, and the issue as "claim was denied stating missing prior authorization." While the record does not include a document dated December 23, 2019 which could be clearly understood as a decision, the appellant included several attachments with the facsimile of the 10182 that identify the date of service for which payment is being sought as December 9, 2019. Generally, a claimant is entitled to receive notice of a decision by the Secretary, which must include particular information, as provided by statute. 38 U.S.C. § 5104. Following implementation of the Appeals Modernization Act, such notice must include the following: (1) Identification of the issues adjudicated. (2) A summary of the evidence considered by the Secretary. (3) A summary of the applicable laws and regulations. (4) Identification of findings favorable to the claimant. (5) In the case of a denial, identification of elements not satisfied leading to the denial. (6) An explanation of how to obtain or access evidence used in making the decision. (7) If applicable, identification of the criteria that must be satisfied to grant service connection or the next higher level of compensation. Id. Without adequate notice of the basis for the denial, a claimant cannot make an informed decision as to whether or not to accept or appeal the decision, or know what evidence they need to submit in order to substantiate their appeal. See Ingram v. Nicholson, 21 Vet. App. 232, 252 (2007) (discussing the legislative history of 38 U.S.C. § 5104 and the importance of clear and informative notice of decisions). Per 38 C.F.R. § 20.802, the Board may remand for correction of any error by the AOJ in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating the appellant's claim. The file contains a December 14, 2019 printout of a document stating that "This is Not a Bill," which indicates nonpayment for the December 3, 2019 episode of care because no authorization number was submitted on the claim and no authorization was found for the care provided, and requesting that the claim be submitted to VA's third party administrators if authorized. An Explanation of Payment, dated December 11, 2019, is also of record that provides the same information, along with directions of how to appeal the decision. However, neither document includes the improved notice of a decision as is required by statute under the Appeals Modernization Act. See 38 U.S.C. § 5104 (requiring that such notice include, among other information, a summary of the evidence considered, a summary of the applicable laws and regulations, and identification of favorable findings and elements not satisfied leading to a denial). The file contains a December 19, 2019 printout of a document which indicates nonpayment for the December 9, 2019 episode of care because no authorization number was submitted on the claim and no authorization was found for the care provided, and requesting that the claim be submitted to VA's third party administrators if authorized. An Explanation of Payment dated December 18, 2019 is also of record that provides the same information, along with directions of how to appeal the decision. Again, neither document includes the improved notice of a decision as is required by statute under the Appeals Modernization Act. See 38 U.S.C. § 5104 (requiring that such notice include, among other information, a summary of the evidence considered, a summary of the applicable laws and regulations, and identification of favorable findings and elements not satisfied leading to a denial). As noted above, the Board is unable to locate the identified December 19, 2019 decision pertaining to the claim for payment for the non-VA medical services provided to the Veteran on December 3, 2019 or the December 23, 2019 decision pertaining to the claim for payment for the non-VA medical services provided to the Veteran on December 9, 2019. It remains unclear whether decisions in addition to the documents referenced above were rendered by the AOJ on the dates identified in the appellant's NODs, but copies of such decisions are simply not of record. In light of this, the Board finds that remand is warranted for the AOJ to associate with the electronic claim file all relevant notices and adjudicatory documents pertaining to the claims on appeal. If the AOJ is unable to locate the decisions identified in the March 2020 NOD, or if such decisions do not include complete notice of the decision adhering to the content requirements of 38 U.S.C. § 5104, the appellant must be provided with complete notice of the decision affecting the payment of benefits. The appellant is notified that under the modernized appeal system, remands do not automatically return to the Board for additional adjudication. Should the AOJ deny the claim in whole or in part and the appellant wish to continue its appeal before the Board, the appellant should file an appropriate NOD (VA Form 10182) within the applicable appeal period after the AOJ's readjudication of the claim. The matters are REMANDED for the following action: 1. Associate with the electronic claim file all relevant notices and adjudicatory documents pertaining to the claims for reimbursement of non-VA medical services provided to the Veteran on December 3, 2019 and December 9, 2019. This should include (but is not limited to): all notices sent to the appellant informing it of the evidence necessary to constitute a complete claim and the evidence necessary to substantiate the claim; all decisions regarding the claim for medical reimbursement; and any notice of decision provided to the appellant (specifically including the December 19, 2019 and December 23, 2019 decisions identified by the appellant in its NODs). 2. If any such records are unable to be located, the AOJ should make a formal finding of unavailability and provide the appellant with notice of the unavailability of records. 3. If the December 19, 2019 and December 23, 2019 decisions affecting the payment of benefits referenced in the March 2020 NODs are unable to be located (or are located but do not comply with the provisions of 38 U.S.C. § 5104 pertaining to notice of decisions), the AOJ must issue the appellant a decision and notice of decision on these matters which adheres to the content requirements of 38 U.S.C. § 5104, including but not limited to a summary of the applicable laws and regulations, identification of findings favorable to the claimant, and identification of whether or not the claim meets the specific criteria necessary for payment under 38 U.S.C. § 1703. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Solomon, 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.