Entitlement to reimbursement for non-VA medication expenses incurred on February 27, 2023, is remanded.

Citation Nr: A26069965 Decision Date: 07/30/26 Archive Date: 07/30/26 DOCKET NO. 230502-343991 DATE: July 30, 2026 REMANDED Entitlement to reimbursement for non-VA medication expenses incurred on February 27, 2023, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 2000 to December 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2023 determination made by the Department of Veterans Affairs (VA) Veterans Health Administration (VHA) Agency of Original Jurisdiction (AOJ). In the May 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the April 2023 AOJ decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. With the notice of disagreement, the appellant included a personal statement that was not previously of record. Because this new evidence was received with the NOD selecting the Direct Review docket, it raises a question as to whether the appellant intended to choose the Evidence Submission docket. The Board finds that clarification is not needed to this end pursuant to Edwards v. McDonough, 36 Vet. App. 56 (2023). The Board is remanding the claim without regard to this new evidence as the reasons for remand are pre-decisional. Hence, no further action is being taken at this stage to clarify the appellant's intention pursuant to Edwards. Entitlement to reimbursement for non-VA medication expenses incurred on February 27, 2023, is remanded. The Veteran seeks reimbursement for the cost of non-VA prescription medication incurred in February 2023. The April 2023 Explanation of Payment denied the Veteran's claim under 38 U.S.C. § 1728 because the prescription reimbursement claim was not associated with a VA-approved urgent/emergent care or VA preapproved visit. VA law provides for payment or reimbursement of unauthorized medical expenses incurred at a non-VA facility under 38 U.S.C. § 1728 and 38 U.S.C. § 1725. Under 38 U.S.C. § 1725, payment or reimbursement of expenses incurred in connection with emergency treatment (including for medical services, professional services, ambulance services, ancillary care and medication (including a short course of medication related to and necessary for the treatment of the emergency condition that is provided directly to or prescribed for the patient for use after the emergency condition is stabilized and the patient is discharged)) for non-service-connected conditions in non-VA facilities may be authorized. 38 C.F.R. §§ 17.1000-03. Under 38 U.S.C. § 1728, a Veteran is entitled to payment or reimbursement of unauthorized medical expenses incurred at a non-VA facility for treatment of a service-connected disability, or a nonservice-connected disability associated with and held to be aggravating a service-connected disability, when it is also shown that (1) the services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health, and (2) no VA or other Federal facilities were feasibly available and an attempt to use them beforehand would not have been reasonable. 38 U.S.C. § 1728; 38 C.F.R. § 17.120. The provisions of 38 U.S.C. § 1728 are implemented under 38 C.F.R. §§ 17.120-32. While the Board has jurisdiction to address eligibility for payment of medical expenses in some instances, it does not have jurisdiction to determine eligibility for payment 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. Similarly, the Board cannot review a decision of a third-party administrator (e.g., 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 specific claims processing and dispute resolution provisions in contracts with providers. See 38 U.S.C. §§ 1703D(g)(1), 7104(a); 38 C.F.R. § 17.4030. Reviewing the available evidence of record, the VHA file indicates that the Veteran sought non-VA treatment and received a prescription for the February 2023 episode of care for allergic contact dermatitis. According to the Veteran's rating codesheet, she is not service connected for dermatitis. Therefore, the statute the AOJ applied to the Veteran's claim is inapplicable. It does not appear that the AOJ considered the claim under 38 U.S.C. § 1725. Additionally, the Board does not have before it the medical records associated with the medical service and prescriptions ordered by the non-VA physician for the February 2023 episode of care. Without that evidence, it is unclear whether the prescriptions were related to emergency medical treatment. 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). The Board 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). As pertinent records are missing from the file, the Board cannot fulfill its statutory and regulatory duty to base its decision on a review of the evidence of record. Therefore, remand is warranted for the AOJ to associate the records with the claims file, including reconstructing the record if necessary. The matters are REMANDED for the following action: 1. Associate all evidence considered in connection with the claim for payment of the cost of medical expenses for prescription medications from February 27, 2023. The record should include (but is not limited to): the claim for payment and/or records of payment by a third party; any evidence and statements submitted by the Veteran in connection with the claim; VA healthcare enrollment records, VA treatment/community care records related to the February 27, 2023, episode of care; and any other relevant documents received or generated in connection with the claim. If the records cannot be associated with the record, notify the appellant and she should be asked to submit any documentation she may have that would be useful in the process of rebuilding the claims file. Allow an appropriate amount of time for the appellant to respond to this request. 2. Issue the Veteran a decision and notice of decision on the issue of entitlement reimbursement for the cost of medical prescription expenses incurred on February 27, 2023, as described in 38 U.S.C. § 5104. The notice shall include but is not limited to: a summary of the evidence; a summary of the applicable laws and regulations; identification of findings favorable to the claimant; and identification of the substantive conditions not satisfied but necessary for payment of the cost of non-VA prescription under 38 U.S.C. § 1725. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Adeleke, T. 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.