Citation Nr: A21016641 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 201110-162552 DATE: October 13, 2021 REMANDED Entitlement to payment for medical services provided to the Veteran on September 25, 2018 is remanded. REASONS FOR REMAND Introduction 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 appellant submitted their VA Form 10182, Notice of Disagreement, in November 2020 and selected the Board's direct review docket, without a Board hearing or the submission of additional evidence. In adjudicating this appeal, the Board may consider evidence associated with the record before the date of the date of the decision on appeal. In this regard, the Board notes in the first place that the deficient state of the record, discussed below, prevents it from determining the precise dates of the evidence window, since the decision or decisions on appeal are not of record. Second, the record contains a February 2021 VHA memorandum which states that upon a secondary clinical review the claim on appeal was "approved" under 38 U.S.C. § 1725. The memorandum states that the appellant "was notified appeal granted" but that "due to Veteran having [other health insurance] an [explanation of benefits from the primary insurer] would be needed to proceed with payment." A February 2021 notice letter addressed to the appellant states that the initial denial has been "overturned," but that the claim cannot be paid for the reason stated in the memorandum, and that the appellant must submit a "new claim and [explanation of benefits]" in order for VHA to readjudicate the claim. As this evidence was received after the appellant's NOD, presumably filed after the decision or decisions on appeal, it falls outside the permissible evidence window and the Board may not consider it. In any event, notwithstanding the February 2021 VHA memorandum's statement that the claim has been "approved" or "granted," the February 2021 notice letter states clearly that the claim has not been paid. Consequently, it appears that the benefits sought are still at issue, such that the appeal is not in fact moot. Entitlement to Payment for Medical Services Provided to the Veteran on September 25, 2018 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 decision or decisions on appeal, any relevant medical records, and relevant correspondence and attachments between the appellant and VHA, referenced in the record. See June 2020 Appellant Correspondence (referencing attached correspondence from October and November 2018). 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 decision or decisions on appeal, any relevant medical records, and relevant correspondence and attachments between the appellant and VHA, referenced in the record. 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 and associate them with the electronic claims file, including but not limited to: (a.) The decision or decisions on appeal, (b.) Any relevant medical private or VA medical records, and (c.) All relevant correspondence (with attachments, exhibits, or enclosures) between the appellant and VHA, including but not limited to correspondence regarding a claim sent by the appellant in October 2018 and rejected or denied for "missing/invalid/incomplete insured id #" referenced in appellant's June 25, 2020 correspondence. 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.