Citation Nr: A21017803 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 191120-54378 DATE: November 3, 2021 REMANDED Entitlement to an annual clothing allowance for 2019 for a wrist brace is remanded. Entitlement to an annual clothing allowance for 2019 for knee braces is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from June 1978 to June 1998. The decision on appeal was issued in October 2019 by a Department of Veterans Affairs Medical Center (VAMC) and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the November 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran 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. Although the Board regrets any additional delay, remand is found needed prior to adjudication of this appeal. Unfortunately, the Board finds that remand is necessary to obtain a copy of the complete record before the agency of original jurisdiction (AOJ) at the time the decision on appeal was rendered. 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 claims file includes the October 2019 decision, but does not include the VA Form 10-8678 or "medical records" cited in the decision. While VHA would have had access to the Veteran's complete VA treatment records at the time of rendering the decision, the Board does not. Thus, the Board 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). If such records are unable to be located, the AOJ should make a formal finding of unavailability and provide the Veteran with notice of the unavailability of records. Further, 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. In the present case, while the letter contains a section for favorable finding(s), such only includes the following sentence: "You will be paid 0 clothing allowances." This is clearly not a favorable finding. Additionally, as reasons for denial, the AOJ listed "not entitled, prosthetic appliance does not cause wear or tear to the outer-garment," and "NO MAINTENANCE ON KNEE BRACES." No further explanation was provided as to how the evidence considered led to this conclusion and therefore, the Veteran was not put on notice of what additional evidence or argument could be presented to support an appeal. 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 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). On remand, if the claims are not granted in full, the AOJ must provide the appellant with complete notice of the decision as required by 38 U.S.C. § 5104, including identification of any favorable findings and a summary of the evidence considered as it relates to the element(s) not satisfied leading to a denial. 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 his 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. Associate with the electronic claim file all evidence considered and notices sent in connection with the claim on appeal. The record should include (but is not limited to): the application for clothing allowance; 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; and any other relevant documents received or generated in connection with the claim. (Continued on the next page) 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 and the opportunity to submit any copy in his possession. 2. Issue the Veteran and his representative 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 any favorable findings and, if either claim remains denied, a summary of the evidence considered as it relates to the element(s) not satisfied leading to a denial. 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.