Citation Nr: A21020496 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 201116-196502 DATE: December 23, 2021 REMANDED Entitlement to payment for the cost of non-VA emergency medical services provided at Cape Cod Hospital on October 24, 2020 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from May 1959 to May 1963. The decision on appeal was issued in October 2020 by the 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 November 2020 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. Entitlement to payment for the cost of non-VA emergency medical services provided on October 24, 2020 is remanded. The Veteran asserts that he is entitled to payment or reimbursement for the cost of non-VA emergency medical services provided at Cape Cod Hospital on October 24, 2020. In an October 2020 decision, the VHA denied payment under 38 C.F.R. § 17.4020(c) because the "Veteran was not enrolled or exempt from enrollment." 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. In this case, the claims file does not include medical records from the date of the non-VA medical services in question, or VHA records from the 24 months preceding that date. A May 2021 Memorandum for Record- Missing Documents reflects that the Preliminary Fee Remittance Advice Report (PFAR), Claims, Claims History, Medical Records, JLV/CPRS notes are missing. A May 2021 Report of Contact also indicates that although the claim was denied because the Veteran was not enrolled or exempt from enrollment, "Per JLV research [the Veteran] is an enrolled veteran and has been seen within the last twenty-four months." Evidence of his enrollment is not of record. 38 U.S.C. § 1703 establishes VA's program to furnish hospital care, medical services, and extended care services to covered veterans through non-VA health care providers (the Veterans Community Care Program), and is implemented under 38 C.F.R. §§ 17.4000-17.4040. 38 C.F.R. § 17.4010, which establishes the conditions of a Veteran's eligibility for non-VA treatment under § 1703, explicitly states that, if such conditions are met, "the covered veteran may elect to receive authorized non-VA care under § 17.4020." In the absence of such VA authorization, in order to be entitled to payment or reimbursement of medical expenses incurred at a non-VA facility, certain conditions including that the treatment was for a medical emergency must be met. See 38 U.S.C. §§ 1725, 1728. Entitlement to payment for expense of unauthorized non-VA medical services under 38 U.S.C. § 1725 requires that a Veteran have received VA medical services within a 24-month period. It is unclear from the available records whether the Veteran had been seen within the last twenty-four months and the Missing Documents Memorandum indicates that the missing records were not requested from the Veteran prior to the issuance of the memorandum. 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, the Veteran was provided with a decision letter indicating that payment had been denied under 38 C.F.R. § 17.4020(c) for the reason that "Veteran was not enrolled or exempt from enrollment." The notice did not provide a full summary of all the applicable laws and regulations (including both 38 U.S.C. § 1703 and 38 U.S.C. § 1725), identification of favorable findings, or other elements not satisfied which would lead to the denial. As such, 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, the AOJ must provide the appellant with complete notice of the decision as required by 38 U.S.C. § 5104, including identification of whether or not the claim meets each of the criteria necessary for payment of cost of non-VA emergency medical services under 38 U.S.C. § 1703 or § 1725 and 38 C.F.R. § 17.1002. The matters are REMANDED for the following action: 1. Associate with the electronic claim file all evidence considered in connection with the claim on appeal. The record should include (but is not limited to): 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 including any authorizations or referrals for care, including but not limited to records of any VA medical care provided to the Veteran within the 24 months leading up to October 24, 2020, and any other relevant documents received or generated in connection with the claim. 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. 2. Issue the Veteran 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, and identification of whether or not the claim meets each of the criteria necessary for payment of cost of non-VA emergency medical services under 38 U.S.C. § 1703 or § 1725 and 38 C.F.R. § 17.1002. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Marenna, 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.