Citation Nr: A21017671 Decision Date: 11/02/21 Archive Date: 11/01/21 DOCKET NO. 200610-93274 DATE: November 2, 2021 REMANDED Entitlement to payment for non-VA emergency medical services provided to the Veteran between February 18, 2019 and February 21, 2019 is remanded. Entitlement to payment for non-VA emergency medical services provided to the Veteran on January 29, 2019 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from June 1967 to January 1969. In June 2020, the Veteran submitted a VA Form 10182, Decision Review Request: Board Appeal, selecting review under the Evidence Submission Docket by a Veterans Law Judge, identifying two letters from July 2019 ostensibly denying claims for payment for non-VA emergency medical services in January and February 2019. As the Veteran elected the Evidence Submission docket, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decisions on appeal, as well as any evidence submitted by the Veteran with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. 1. Entitlement to payment for non-VA emergency medical services provided to the Veteran between February 18, 2019 to February 21, 2019 is remanded. In July 2019, the Cleveland VA Medical Center (VAMC) sent the Veteran a letter indicating that his claim for reimbursement of emergency treatment from February 18, 2019 to February 21, 2019 had been rejected because medical records had not been received sufficient to make a decision on payment, indicating that a copy of the letter was also sent to the emergency treatment provider. While the letter states that "[t]his is not a denial," it is unclear from the record whether the Veteran has been sent notice either that a decision had been rendered or that his claim was considered abandoned due to failure to provide the requested information. Per 38 U.S.C. § 5103A(b), VA has a duty to assist claimants in obtaining private records. The statute specifies that the Secretary shall make reasonable efforts to obtain relevant, adequately identified, private records, and that reasonable efforts include making not less than two requests to a custodian of the private records, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The Board notes that, in this case, the July 2019 letter reflects that the AOJ was aware that the claim in question was for reimbursement of the cost of non-VA emergency medical services under 38 C.F.R. § 1725, and a VA Community Care-Hospital Notification note from February 2019 includes information necessary to identify the non-VA healthcare provider and the relevant dates of service. In the July 2019 letter to the Veteran, the AOJ indicated that the claim had been rejected because private medical records concerning the episode of care in question had not been received, and that without such records, the AOJ lacked needed information to consider the claim. A nearly identical letter was sent to the Veteran in March 2020, with the addition of a statement that the Veteran or the provider of medical services may submit the requested documentation within 30 days of receipt of the request. 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). On remand, the AOJ must undertake reasonable efforts to obtain the relevant private treatment records in question directly from the private healthcare facility. If authorization is needed from the Veteran, or the records cannot be obtained following at least two requests to the healthcare provider, the Veteran should be provided with appropriate notice informing him of the action/evidence needed from him and the consequences of inaction. The AOJ should then issue the Veteran a notice of decision which complies with the content requirements of 38 U.S.C. § 5104, including but not limited to a summary of the evidence considered, identification of findings favorable to the claimant, and identification of element(s) leading to a denial, if applicable. 2. Entitlement to payment for non-VA emergency medical services provided to the Veteran on January 29, 2019 is remanded. In the July 2019 decision on appeal, the VAMC denied the Veteran's claim for payment for non-VA emergency medical services on the basis that the Veteran could have safely transferred to a VA facility for continued treatment, but declined to transfer. Only the first page of the decision letter is in the claims file, and it is unclear whether the letter included all of the information required under 38 U.S.C. § 5104, as would constitute adequate notice of a decision, such as a summary of the evidence considered, or identification of favorable findings. Without adequate notice of the basis for a decision, a claimant cannot make an informed decision as to whether or not 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. 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 that it 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 matters are REMANDED for the following action: 1. Make at least two requests to the relevant private healthcare facility for the private treatment records pertaining to the February 18, 2019 to February 21, 2019 episode of care, obtaining any necessary authorization from the Veteran as needed. Any communication for assistance to the Veteran, or to inform him in the event that such requests made to the private healthcare provider were unsuccessful, should clearly identify what action is needed from him and within what timeframe, and the consequences of failure to respond. 2. Thereafter, issue the Veteran a decision and notice of decision on the issue of entitlement to payment or reimbursement for the cost of non-VA emergency medical services provided to the Veteran between February 18, 2019 to February 21, 2019 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, summary of the evidence considered, identification of findings favorable to the claimant, and, if applicable, identification of the element(s) leading to a denial. Ensure that all evidence upon which the decision is based is identified in the notice and made part of the electronic record. 3. Issue the Veteran a decision and notice of decision on the claim for payment for non-VA emergency medical services provided to the Veteran on January 29, 2019 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, summary of the evidence considered, identification of findings favorable to the claimant, and, if applicable, identification of the element(s) leading to a denial. Ensure that all evidence upon which the decision is based, as well as all relevant notices and adjudicatory documents, is made part of the electronic record. 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.