Citation Nr: A21016523
Decision Date: 10/08/21	Archive Date: 10/08/21

DOCKET NO. 210212-175729
DATE:  October 8, 2021

REMANDED

Entitlement to payment or reimbursement for the cost of non-VA treatment received March 3, 2019 is remanded.

REASONS FOR REMAND

Introduction

This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2021 decision of the Veterans Health Administration (VHA).

On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with the Department of Veterans Affairs (VA)'s decision on their claim to seek review. This decision has been written consistent with the new AMA framework.

The Veteran submitted his VA Form 10182, Notice of Disagreement, in February 2021 and selected direct review of the January 2021 VHA decision without a Board hearing or the submission of additional evidence.

In adjudicating this appeal, the Board may consider evidence associated with the record before January 16, 2021, the date of the VHA decision on appeal.

In this regard, the Board notes that a VHA memorandum and a notice letter addressed to the Veteran, both dated July 2021, indicate that the claim on appeal has been reviewed and granted. In the first place, the Board may not consider this evidence as it falls outside the permissible evidence window.

Moreover, the VHA memorandum states that the claim will be paid in the amount of $347.33, whereas the January 2021 VHA decision on appeal denies payment for a bill of $496.19. The record contains no explanation as to why the entire bill was not paid upon administrative review, and consequently it appears that some portion of the benefits sought are still at issue, such that the appeal may not be entirely moot.

Entitlement to Payment or Reimbursement for the Cost of Non-VA Treatment Received March 4, 2019

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).

Here, the record is missing the original claims giving rise to this appeal and any relevant medical records. Thus, the Board cannot fulfill its statutory and regulatory duty to base its decision on a review of the evidence of record at the time of the AOJ decision below. 

Due process requires that the AOJ ensure that a copy of the record before it 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); see also 38 C.F.R. § 20.802(a) (noting that the Board may remand for correction of an 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). 

Therefore, remand is warranted for the AOJ to associate with the electronic claims file all relevant records before it at the time it denied the appellant's claim, including but not limited to the original claims and any relevant medical records.

The matters are REMANDED for the following action:

1. Obtain all relevant records which were in evidence at the time of the decision on appeal, including but not limited to:

(a.) The original claims giving rise to this appeal, and

(b.) Any relevant medical private or VA medical records.

 

 

S.C. KREMBS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	P. Timmerman, 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.