Citation Nr: A21017148 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 200507-163659 DATE: October 22, 2021 REMANDED Entitlement to reimbursement or payment for medical services rendered from November 19, 2018 to February 21, 2019 by Inner Peace Counseling Services is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from October 1978 to February 1982. The appellant, Inner Peace Counseling Services, is the vendor who provided the services in question from November 19, 2018 to February 21, 2019. This matter is before the Board of Veterans' Appeals (Board) pursuant to a VA Form 10182 Decision Review Request: Notice of Disagreement (NOD) submitted by the appellant and received by the Board in April 2020. In the April 2020 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) decision on appeal. 38 C.F.R. § 20.301. In the NOD, the appellant seeks to appeal the denied dates of service from November 19, 2018 to February 21, 2019. The decision on appeal is not within the record and needs to be associated with the claims file. The claims history of record reflects the dates of service were denied for no prior authorization and for dates of service outside authorization range. The Board notes there is authorization on record for the appellant for dates of service November 19, 2018 to February 6, 2019 and February 7, 2019 to February 22, 2019. There is additional evidence of record that reflects a notation the authorization is on file for the appellant, but the claims need to be resubmitted. Unfortunately, the Board finds that a remand is necessary to obtain the documents needed to determine whether the Board has jurisdiction to address the appellant's claim. In the instant matter, the appellant seeks reimbursement for medical care provided from November 19, 2018 to February 21, 2019. However, 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 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). Additionally, 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). In this case, the Board does not have before it the evidence upon which the decision was based. It is also unclear under whether all regulations were considered for eligibility. Thus, the Board cannot determine whether it has jurisdiction to adjudicate the instant appeal 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 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, the Board finds that 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). In light of the above, the Board finds that remand is warranted for the AOJ to associate with the electronic claim file all relevant notices, adjudicatory documents, and evidence considered in connection with the claims on appeal, including the decision issued. If 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. If the AOJ is unable to locate the decision that was specified in the NOD, the appellant must still be notified in writing of the decision affecting the payment of benefits, pursuant to 38 U.S.C. § 5104. This notification must also include any finding favorable to the claimant as described in 38 U.S.C. § 5104A. If the claim is for reimbursement for medical services provided pursuant to a referral to the community care network under 38 U.S.C. § 1703, the notice should explain this to the appellant and inform the appellant how a claim for reimbursement should be submitted. Additionally, the AOJ should ensure that all evidence upon which the decision is based is identified in the notice and made part of the electronic record for review by the Board should the appellant submit an additional notice of disagreement to the Board. 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 their 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. Associate with the electronic claim file all relevant notices, adjudicatory documents, and evidence considered in connection with the claim(s) on appeal. Please note that providing a copy of the entire medical record will not be a sufficient response to this request. 2. Readjudicate the claim and issue the appellant a decision and 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. If the decision affecting the payment of benefits referenced in the NOD is unable to be located, the AOJ must issue written notification to the appellant as described in 38 U.S.C. § 5104. The AOJ is reminded that such notification must also include any finding favorable to the claimant as described in 38 U.S.C. § 5104A. Clarification as to which regulation, to 38 U.S.C. §§ 1703, 1725, or 1728 the claim was evaluated under must also be provided. Ensure that all evidence upon which the decision is based is identified in the notice and made part of the electronic record for review by the Board. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Mouzakis, 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.