Citation Nr: A21017166 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 210108-180347 DATE: October 25, 2021 REMANDED Entitlement to payment of medical expenses incurred on August 13, 2019, at St. Anthony Hospital (SAH) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1954 to September 1958. He died in May 2021. This appeal is before the Board of Veterans' Appeals (Board) pursuant to a January 2021 Department of Veterans Affairs (VA) Form 10182 Decision Review Request: Notice of Disagreement (NOD) submitted by the appellant. The appellant, SAH, contends that in September 2019 VA issued payment of the appellant's claim for medical services provided to the Veteran on August 13, 2019, in the amount of $404.93, but that the expected payment for the claim was $460.86, leaving an underpayment of $55.93. The Board decides 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 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). 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 CCN, 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. In this case, the Board does not have before it the decision being appealed, including any notice of the decision provided to the appellant, or the evidence on which the decision was based. 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 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, 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). Therefore, 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 claim on appeal. 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 January 2021 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 include any finding favorable to the appellant as described in 38 U.S.C. § 5104A, as well as the basis of such denial, including the evidence used in determining that the total reimbursable amount, and the methodology applied to that evidence to determine that total. The matters are 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 on appeal. 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 informing the appellant of 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; and any other relevant documents received or generated in connection with the claim. 2. If any such records are unable to be located, make a formal finding of unavailability and provide the appellant with notice of the unavailability of records. 3. If the decision affecting the payment of benefits referenced in the January 2021 NOD is unable to be located, issue written notification to the appellant as described in 38 U.S.C. § 5104. Such notification must include any finding favorable to the appellant as described in 38 U.S.C. § 5104A, and describe the basis of any denial, including the evidence used in determining the total reimbursable amount and the methodology applied to the evidence to determine that total. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Andrew Mack, 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.