Citation Nr: A21016418
Decision Date: 10/06/21	Archive Date: 10/06/21

DOCKET NO. 200401-156783
DATE: October 6, 2021

REMANDED

Entitlement to payment of medical expenses incurred on February 18, 2019, at Tanner Medical Center (TMC) is remanded.

REASONS FOR REMAND

This appeal is before the Board of Veterans' Appeals (Board) from a decision of the Department of Veterans Affairs (VA) Veterans Health Administration (VHA).  

VA clinical tracking records indicate that the Veteran's claim was denied under 38 U.S.C. § 1725 on the basis that he had not received VA care in the 24 months prior to his treatment at TMC.  See 38 C.F.R. § 17.1002(d).  However, despite attempts to obtain such records and documentation administratively, the Board does not have before it the decision being appealed (or any notice provided to the Veteran of that decision, including notification of the basis of the denial), or the evidence on which the decision was based, including VA medical records (specifically, those immediately before and after, or on, February 18, 2019) and the records of the treatment at TMC in question.

Decisions of the Board must be based on a de novo review of the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on the issue or issues on appeal, and any additional evidence considered as part of the evidentiary record pursuant to applicable statute and regulation.  38 U.S.C. §§ 7104(d), 7113; 38 C.F.R. § 20.801(a).  Under the above circumstances, the Board cannot fulfill its statutory and regulatory requirement to base its decision on a review of the evidence of record at the time of the AOJ decision on the issue or issues on appeal. 

The Board shall remand for any pre-decisional error on the part of the AOJ to satisfy its duties under 38 U.S.C. § 5103A, and may remand for correction of any other 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.  38 C.F.R. § 20.802(a).  Here, due process requires that the AOJ ensure that a copy of the record before it, on which it based any decision, including the appropriate notices provided to the Veteran, is made available for the Board's review in connection with the appeal.  See 38 U.S.C. §§ 5103 (requiring notice to claimants of required information and evidence), 5104 (requiring specific information in the notice of a decision), 5107 (requiring the Secretary to consider all information and lay and medical evidence of record in a case).

Therefore, remand is warranted for the AOJ to associate with the electronic claim file all relevant evidence to the matter on appeal, to include: the decision being appealed, and the notice provided to the Veteran of that decision; VA medical records, and specifically those immediately before and after, and on, February 18, 2019; the records of the treatment at TMC in question; documentation of the Veteran's dates of service; and documentation of whether the Veteran has any service-connected disabilities and, if so, what these are.

The matters are REMANDED for the following action:

Associate with the electronic claim file all relevant evidence to the matter on appeal, to include: the decision being appealed, and the notice provided to the Veteran of that decision; VA medical records, and specifically those immediately before and after, and on, February 18, 2019; the records of the treatment at TMC in question; documentation of the Veteran's dates of service; and documentation of whether the Veteran has any service-connected disabilities and, if so, what these are.

Any unsuccessful attempts to obtain any such records must be clearly documented.  

If a copy of the decision being appealed cannot be associated with the claim file, provide the Veteran with notice of the decision that explains the basis of any denial of benefits.

 

 

JONATHAN B. KRAMER

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.