Citation Nr: A21018069 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 200318-165843 DATE: November 9, 2021 REMANDED Entitlement to payment of cost of non-VA medical services provided to the Veteran on December 12, 2019 is remanded. REASONS FOR REMAND The decision on appeal was issued in December 2019 by a Department of Veterans Affairs (VA), Veterans Health Administration (VHA) and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the March 2020 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. § 20.303. Unfortunately, the Board finds that remand is necessary to (1) obtain information necessary to determine its jurisdiction to reach the merits of the appeal, and (2) provide adequate notice to the appellant concerning the authority under which payment of the medical reimbursement sought may be made and the reason for the denial of the claim. In the instant matter, the appellant seeks reimbursement for medical care provided on December 12, 2019. The appellant stated a decision was issued on December 23, 2019 which denied the claim for no prior authorization. However, it is unclear under what authority the appellant seeks or may otherwise be entitled to payment. 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 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. §§ 1703(f), 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 necessary to determine its jurisdiction, such as the referral or authorization under which the service was provided (if any). 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 or issues on appeal. Compounding the problem, the Board finds that the notice of decision has not associated with the file. As such, the Board is unable to determine if the notice was adequate under 38 U.S.C. § 5104. 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. In the present case, the December 2019 decision is not of record. 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). Additionally, the Board cannot identify whether it has jurisdiction to review the decision because it is unclear under what authority the appellant was seeking payment or might be entitled to payment without such information. 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. The Board finds that the AOJ erred in not ensuring that all the necessary evidence was of record for review by the Board. On remand, the AOJ must provide the appellant with complete notice of the decision as required by 38 U.S.C. § 5104. 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 matters are REMANDED for the following action: Issue to 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. 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. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Uller, 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.