Citation Nr: A21016935 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 201203-186139 DATE: October 19, 2021 REMANDED Entitlement to payment for non-VA medical services provided to the Veteran on December 19, 2019 is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1962 to September 1964. He died on April [REDACTED], 2020. The appellant in this matter is the vendor who provided medical services to the Veteran on December 19, 2019. In December 2020, the vendor submitted a VA Form 10182, Decision Review Request: Board Appeal, selecting Direct Review by a Veterans Law Judge, identifying May 4, 2020 and June 3, 2020 as the dates of decision. In the 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. Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is remanding these claims for further development, this additional evidence will be considered by the AOJ in the adjudication of those claims. The file contains undated Electronic Provider Remittance Advice from Optum (Optum VA CCN Region 1) pertaining to the date of service at issue. The record contains an Explanation of Payment letter dated June 3, 2020 from VA Office of Community Care. The appellant seeks direct payment from VA for services rendered in this case. Unfortunately, the Board finds that remand is necessary to obtain the documents needed to determine whether the Board has jurisdiction to address the appellant's claims. Due to the apparent incomplete record, it is unclear under what authority the appellant seeks or may otherwise be entitled to payment. While the Board has jurisdiction to address eligibility for payment or reimbursement for medical expenses in some instances, it does not have jurisdiction to determine eligibility for referral to a community care network pursuant to 38 U.S.C. § 1703 or eligibility for payment under a Veterans Care Agreement. See 38 U.S.C. §§ 1703(f), 1703A; 38 C.F.R. § 17.4135. Likewise, the Board cannot review a decision of a third- party administrator (Optum or TriWest) regarding the processing of invoiced claims for payment to non-VA providers under the community care network, because those decisions are subject to the specific claims processing and dispute resolution provisions laid out in the contracts with those providers. See 38 U.S.C. §§ 1703D(g)(1), 7104(a); 38 C.F.R. § 17.4030. The Board shall decide all questions pertaining to its jurisdictional authority to review a particular case. 38 C.F.R. § 20.104(c). Decisions of the Board must be based on a de novo review of the evidence of record at the time of the 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). In this case, the Board does not have a copy of the contractual agreement between Optum and the appellant specifying appeal rights and procedures for review. Thus, the Board cannot determine whether it has jurisdiction to adjudicate the instant appeal. Further, the Explanation of Payment letter, while listing a reason for rejecting the claim, do not include information required under 38 U.S.C. § 5104 as would constitute adequate notice of a decision, such as a summary of the evidence considered, a summary of the applicable laws and regulations, or identification of favorable findings. Without adequate notice of the basis for a decision, a claimant cannot make an informed decision as to whether 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). Additionally, without this information, the Board cannot clearly ascertain what evidence was previously of record and considered by the AOJ and 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 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, the Board finds that due process requires that the AOJ provide the appellant with complete notice of the decision as required by 38 U.S.C. § 5104 and 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). 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 matter is REMANDED for the following action: 1. Obtain and associate with the electronic claims file a copy of appellant's contractual agreement with Optum and/or any other relevant third-party claim processor; specifically including those provisions pertaining to filing of claims and appeal rights. 2. Ensure that all relevant notices, adjudicatory documents, and evidence considered in connection with the claims on appeal are associated with the electronic claim file. Please note that providing a copy of the entire medical record will not be a sufficient response to this request. Instead, the record 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; any notice of decision provided to the appellant; any evidence submitted by the appellant in connection with the claim; any relevant VA and private medical records obtained or received in connection with the claim, including any authorizations or referrals for care; and any other relevant documents received or generated in connection with the claim. 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. Issue the appellant a notice of decision on this matter 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 the claim meets each of the criteria necessary for payment for non-VA medical services under the applicable statutes and regulations. L.M. BARANRD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Carroll, 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.