Citation Nr: A21017306 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 210217-186711 DATE: October 26, 2021 REMANDED Entitlement to payment for non-VA medical services provided to the Veteran on September 18, 2019 (claim ID 301929700008096000) is remanded. Entitlement to payment for non-VA medical services provided to the Veteran on September 18, 2019 (claim ID 301929700008104000) is remanded. Entitlement to payment for non-VA medical services provided to the Veteran on September 19, 2020 (claim ID 301929700008072000) is remanded. Entitlement to payment for non-VA medical services provided to the Veteran on September 19, 2020 (claim ID 301933800019051000) is remanded. Entitlement to payment for non-VA medical services provided to the Veteran on September 20, 2020 (claim ID 301929700008076000) is remanded. Entitlement to payment for non-VA medical services provided to the Veteran on September 21, 2020 (claim ID 301929700008088000) is remanded. REASONS FOR REMAND The appellant in this matter is the vendor that provided the non-VA medical services to the Veteran in September 2019. The decisions on appeal were issued in June 2020 by a Department of Veterans Affairs (VA) Medical Center (VAMC) and constitute initial decisions; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the February 2021 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. Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is remanding the claims of entitlement to payment for non-VA medical services provided to the Veteran between September 18, 2020 and September 21, 2020 for further development, this additional evidence will be considered by the AOJ in the adjudication of those claims. 1. Entitlement to payment for non-VA medical services provided to the Veteran on September 18, 2019 (claim ID 301929700008096000) is remanded. 2. Entitlement to payment for non-VA medical services provided to the Veteran on September 18, 2019 (claim ID 301929700008104000) is remanded. 3. Entitlement to payment for non-VA medical services provided to the Veteran on September 19, 2020 (claim ID 301929700008072000) is remanded. 4. Entitlement to payment for non-VA medical services provided to the Veteran on September 19, 2020 (claim ID 301933800019051000) is remanded. 5. Entitlement to payment for non-VA medical services provided to the Veteran on September 20, 2020 (claim ID 301929700008076000) is remanded. 6. Entitlement to payment for non-VA medical services provided to the Veteran on September 21, 2020 (claim ID 301929700008088000) is remanded. The Board finds that the notice of decision provided to the appellant does not contain all of the elements required by law, and thus does not inform the Board or the appellant the basis for the denial. Generally, a claimant is entitled to receive notice of a decision by the Secretary, which must include particular information, as provided by statute. 38 U.S.C. § 5104. Following implementation of the Appeals Modernization Act, such notice must include the following: 1. Identification of the issues adjudicated. 2. A summary of the evidence considered by the Secretary. 3. A summary of the applicable laws and regulations. 4. Identification of findings favorable to the claimant. 5. In the case of a denial, identification of elements not satisfied leading to the denial. 6. An explanation of how to obtain or access evidence used in making the decision. 7. If applicable, identification of the criteria that must be satisfied to grant service connection or the next higher level of compensation. Id. Based on review of the record, it does not appear that the AOJ provided the vendor with pre-decisional notice of what the evidence must show to substantiate a claim for payment under 38 U.S.C. § 1725 and what evidence the vendor was expected to provide. This represents an error by the AOJ in satisfying its duty to notify the claimant under 38 U.S.C. § 5103. Further, while the Explanation of Payment (EOP) vaguely identified the issue adjudicated, identified the law in question, and identified one element not satisfied leading to the denial, there was no summary of the evidence considered, summary of the applicable laws and regulations, or identification of favorable findings or other elements not satisfied which would lead to the denial, as required under 38 U.S.C. § 5104. For example, the AOJ did not include any findings within the EOP as to whether the non-VA medical services provided in September 2020 were rendered in a medical emergency. While the vendor subsequently supplied private treatment records, under the Direct Review docket, the Board may not consider evidence that was not before the AOJ at the time of making the original decision. Without adequate notice of the basis for the denial, a claimant cannot make an informed decision as to whether or not to accept or appeal the decision, or know what evidence 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). Per 38 C.F.R. § 20.802, the Board may remand for correction of any 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. On remand, the AOJ must provide the appellant with complete notice of the decision as required by 38 U.S.C. § 5104, including identification of whether or not the claim meets each of the criteria necessary for payment of cost of non-VA emergency medical services under 38 U.S.C. § 1725 and 38 C.F.R. § 17.1002, and ensure that a copy of the record before it is made available for the Board's review in connection with the appeal, if the benefits sought are not granted in whole. 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 matters are REMANDED for the following action: Issue the appellant a notice of decision on these matters 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 or not the claim meets each of the criteria necessary for payment for non-VA medical services under the applicable statutes and regulations (including for payment of cost of non-VA emergency medical services under 38 U.S.C. § 1725 and 38 C.F.R. § 17.1002). 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, as well as all relevant notices and adjudicatory documents. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Solomon, 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.