Citation Nr: A21016793
Decision Date: 10/15/21	Archive Date: 10/15/21

DOCKET NO. 201007-164349
DATE: October 15, 2021

ORDER

The appeal of the issue of entitlement to payment for non-VA medical services performed between August 12, 2019 and September 20, 2019 is dismissed.

FINDING OF FACT

Two August 2020 notice letters reflecting non-payment of the appellant's claim are not appealable determinations regarding entitlement to payment. The notice letters indicate that VA could not process the appellant's claim because "services were referred or coordinated by a [Community Care Network] Contractor," and instructs the appellant to "submit [the] claim to the contractor specified in the authorization or contract."

CONCLUSION OF LAW

The criteria for dismissal of the issue of entitlement to payment for non-VA medical services performed by the appellant between August 12, 2019 and September 20, 2019 are met. 38 U.S.C. §§ 5104, 7104, 7105; 38 C.F.R. § 38 C.F.R. §§ 20.104, 20.200, 20.201, 20.202.

REASONS AND BASES FOR FINDING AND CONCLUSION

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 a VA Form 10182, Notice of Disagreement, in October 2020 and selected the Board's direct review docket, without a Board hearing or the submission of additional evidence.

Entitlement to Payment for Non-VA Medical Services Performed between August 12 and September 20, 2019

The appellant is seeking payment from VA for services provided to the Veteran between August 12 and September 20, 2019. See Claims dated June 2020.

In two August 2020 notice letters, the AOJ informed the appellant that their claim could not be processed by VA, since "services were referred or coordinated by a [Community Care Network] Contractor" and directed that the claim should be submitted "to the contractor specified in the authorization or contract."

The notice letters did not make any determination regarding entitlement to payment, and did not include most of the information required by law to accompany notice of a decision. See 38 U.S.C. §§ 5104(b). The letters did provide information on how to appeal "the decision regarding this medical claim." However, because the letters did not in fact make a decision regarding the claim, and because the explanation provided for non-payment states unequivocally that VA was "unable to process this claim," the Board finds that this language is without effect.

In October 2020, the appellant filed a VA Form 10182, NOD, in response to the August 2020 notice letters. VA regulations state that an NOD submitted in accordance with the provisions of 38 C.F.R. §§ 20.202204 comprises an appeal to the Board. See 38 C.F.R. § 20.201. However, "nothing in an NOD could confer jurisdiction upon the Board over a claim that was never... adjudicated by the [AOJ] because there is no decision on such a newly raised claim to appeal to the Board." Jarrell v. Nicholson, 20 Vet. App. 326, 331(2006) citing Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995).

VA regulations also provide that "[t]he Board shall decide all questions pertaining to its jurisdictional authority to review a particular case." See 38 C.F.R. § 20.104(c). Here, the AOJ has not made a decision on the appellant's claim. Rather, the August 2020 notice letters informed the appellant that the AOJ was "unable to process the claim" and that it must be resubmitted through the appropriate third party contractor. Therefore, because there has been no decision on the appellant's claim, the Board lacks jurisdiction to adjudicate the appeal, and it is dismissed.

Moreover, although 38 C.F.R. § 20.104(c) provides that notice and the opportunity to present evidence and argument, including the opportunity for a hearing, must be provided to all parties when the Board raises a question as to a "potential" jurisdictional defect, here there is no question as to a "potential" jurisdictional defect, rather an actual and evident defect on the face of the record. In a word, the record contains no decision in response to which the appellant filed their appeal.

Therefore, because the jurisdictional defect is not potential, but actual and evident, notice and the opportunity to present evidence and argument, including the opportunity for a hearing, are not required. 

 

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.