Citation Nr: A21017986 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 210305-168840 DATE: November 8, 2021 REMANDED Entitlement to payment for non-Department of Veterans Affairs (VA) medical services provided to the Veteran from November 27, 2019 to May 28, 2020 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from March 1951 to January 1953. The Veteran died in November 2020. The appellant in this matter is Angel Home Health. 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 March 2021. In the March 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. In the NOD, the appellant noted they were appealing the denial of a claim for the services they provided. The appellant reported the denial reason was for untimely filing. The appellant reported on the VA Form 10182 the decision being appealed was dated August 27, 2020. The Board notes the VA Consolidated Fee Unit reported the correct date of decision is August 28, 2020. However, the Board notes the decision is not of record and must be associated with the claims file. The Board acknowledges that during the appeal period, multiple dates of service for the appellant underwent an administrative review and payment was issued. However, the dates of services from November 27, 2019 to November 29, 2019 could not be processed. The Consolidated Fee Unit noted the appellant submitted the claim for episode of care from November 27, 2019 to May 28, 2019 but the VA reports the dates of service were November 27, 2019 to November 29, 2019 and the appellant's claim could not be resurrected because of this error. 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 payment for care provided from November 27, 2019 to May 28, 2020. However, due to the apparent incomplete record, it is unclear under what authority the appellant seeks or may otherwise be entitled to payment and the dates of service are also in conflict. 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. The evidence of record reflects an authorization on file for the appellant for the services associated with the medical care for the referred condition. There is correspondence dated August 28, 2020, stating "This is not a bill" and notes the care was authorized under 38 U.S.C. § 1703 and reflects the appellant's bill was a duplicate. 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. While it appears the claim may fall under 38 U.S.C. § 1703, given the decision on appeal, evidence used to make a determination, and any evidence on whether this information was submitted to the provider are not of record for review, this matter must be remanded. 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. 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. 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.