Citation Nr: A21020158 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 210202-185122 DATE: December 17, 2021 REMANDED Entitlement to payment of medical expenses incurred for the period from October 18, 2018 to October 29, 2018, from Banner Thunderbird Medical Center is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1959 to April 1962. He died in March 2019. The appellant, Banner Thunderbird Medical Center, is a federal facility that provided medical treatment for the Veteran. This appeal is before the Board of Veterans' Appeals (Board) from a September 2020 decision of the Department of Veterans Affairs (VA) Veterans Health Administration that denied a remainder of payment of medical expenses stemming from treatment administered by Banner Thunderbird Medical Center in October 2018. In the February 2021 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. Evidence was submitted by the appellant in support of their appeal with their VA Form 10182. This is during a period of time when new evidence was not allowed since the appellant selected the Direct Review docket. As the Board is remanding this matter for further development, this additional evidence will be considered by the AOJ in the adjudication of those claims. Entitlement to payment of medical expenses incurred for the period from October 18, 2018 to October 29, 2018, from Banner Thunderbird Medical Center is remanded. The appellant seeks payment of medical expenses incurred during the Veteran's hospitalization stay of 11 days for treatment of his esophageal cancer and other medical effects in October 2018. Specifically, the appellant asserts that a partial payment in the amount of $15,791.68 was previously paid, but that an additional payment is still owed. Prior to the Veteran's death, the evidence of record showed he was treated by Banner Thunderbird Medical Center from October 18, 2018 to October 29, 2018. When VA facilities are not capable of furnishing required care or services, VA may contract with non-VA facilities in order to furnish certain care, including hospital care or medical services for the treatment of medical emergencies that pose a serious threat to the life or health of a Veteran receiving medical services in a VA facility, until such time following the furnishing of care in the non-VA facility as the Veteran can be safely transferred to a VA facility. See 38 U.S.C. § 1703(a)(3); 38 C.F.R. § 17.52. Generally, the admission of a Veteran to a non-VA hospital at the expense of VA must be authorized in advance. 38 C.F.R. § 17.54. In the case of an emergency that existed at the time of admission, an authorization may be deemed a prior authorization if an application is made to VA within 72 hours after the hour of admission. Id. As an initial matter, the Veteran's claims file notes that the September 2020 decision on appeal is not locatable due to the fact that the former VA program to reimburse costs, the Fee-Basis Claims Systems (FBCS), sunsetted on October 30, 2020. As such, the Board is unable to review the actual reasons and bases for the denial of the remainder of the payment. During the pendency of this appeal, the claims were administratively reviewed and payment for the October 18, 2018 to October 28, 2018 dates of service were processed. An event summary reflects that the original uniform billing (UB) claim number 1704670, under diagnosis-related group (DRG) code 374, paid $15,791.68 to the appellant. Subsequently, the appellant asserts that they submitted a corrected claim in December 2019, noted as UB 2053121, under DRG 981, and was expecting $15,064.54 more in payment. The same event summary noted that UB 2053121 was denied in September 2020, leading to the current appeal. This event summary further noted that this information was sent to the AOJ for review of the payment dispute. Given this history, the Board is unclear whether the dates of service were paid in full (UB 2053121), as the file does not reflect whether this current review resulted in another decision issued. 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: identification of the issues adjudicated; a summary of the evidence considered by the Secretary; a summary of the applicable laws and regulations; identification of findings favorable to the claimant; in the case of a denial, identification of elements not satisfied leading to the denial; an explanation of how to obtain or access evidence used in making the decision; and, if applicable, identification of the criteria that must be satisfied to grant service connection or the next higher level of compensation. In the present case, there remains a paid bill for UB 1704670 and it is unclear how the determination was made for UB 2053121. 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). 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 Board does not have before it the evidence upon which the decision was based. Although the Board recognizes that the FBCS program sunsetted on October 30, 2020, and the September 2020 decision was not accessible, the fact remains that notice must be provided to the appellant. 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 ensures that a copy of the record before them 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 issue a decision which adheres to the requirements of 38 U.S.C. § 5104 and associate with the electronic claims file the evidence to determine whether the UB 2053121 was properly paid (contract or additional correspondence detailing the payment distribution process). The matter is REMANDED for the following actions: 1. Issue the appellant a decision and notice of decision on this matter which adheres to the content requirements of 38 U.S.C. § 5104 for all UBs at issue, including but not limited to a summary of the applicable laws and regulations, identification of findings favorable to the claimant. 2. Associate with the electronic claims file the evidence to determine whether the UB 2053121 was properly paid (contract or additional correspondence detailing the payment distribution process). D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Tang, 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.