Citation Nr: 21003104 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 19-26 513 DATE: January 19, 2021 REMANDED 1. Entitlement to service connection for left hand osteoarthritis, to include as secondary to exposure to herbicides is remanded. 2. Entitlement to service connection for right hand osteoarthritis, to include as secondary to exposure to herbicides is remanded. 3. Entitlement to service connection for bronchial asthma, to include as due to exposure to herbicides is remanded. 4. Entitlement to service connection for sinusitis, to include as due to exposure to herbicides is remanded. 5. Entitlement to service connection for nasal polyps, to include as due to exposure to herbicides is remanded. REASONS FOR REMAND The appellant is a Veteran who had active service from December 1965 to September 1967. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a January 2018 rating decision. 1., 2., 3., 4., 5. Entitlement to service connection for left and right hand osteoarthritis, bronchial asthma, sinusitis, and nasal polyps, each to include as due to exposure to herbicides. On August 29, 2019, the Veteran returned a VA “Appeal Hearing Options” selection form that offered him the opportunity to select a local hearing with a decision review officer (DRO), a travel Board hearing, a videoconference Board hearing, or a hearing in Washington, D.C. The Veteran selected the option for a DRO hearing. He concurrently (on August 29, 2019) submitted a VA Form 9 (substantive appeal) for the issues addressed herein. On that form, he did not indicate that he wanted a Board hearing, and has not been afforded a Board hearing. The Veteran was not provided the DRO hearing he requested in the August 29, 2019 submission. Failure to offer the Veteran a DRO hearing in this instance constitutes a due process violation that must be remedied on remand. In Bowen v. Shinseki, 25 Vet. App. 250, 254 (2012), the United States Court of Appeals for Veterans Claims (CAVC) held that when a veteran is denied a hearing before the RO, there is no due process violation if he or she is subsequently offered the opportunity for a hearing before the Board and cannot demonstrate prejudice from the fact he was not provided a hearing at the regional office (RO). In that case, CAVC concluded that the Veteran’s denial of a DRO hearing violated the provisions of 38 C.F.R. § 3.103(c)(1). That statute, at the time of the holding in that case, provided that “upon request, a claimant is entitled to a hearing at any time on any issue involved in a claim within the purview of part 3 of this chapter, subject to the limitations described in § 20.1304 of this chapter with respect to hearings in claims which have been certified to the Board of Veterans’ Appeals for appellate review.” 38 C.F.R. was amended in January 2019, effective from February 2019, to state that “…a claimant is entitled to a hearing on any issue involved in a claim within the purview of part 3 of this chapter before VA issues notice of a decision on an initial or supplemental claim.” See 38 C.F.R. § 3.103(d). Although 38 C.F.R. § 3.103 was modified with the enactment of the Veterans Appeals Improvement and Modernization Act of 2017 (AMA), the amendments applied to all claims for which notice of a decision was issued on or after the implementation date, which was February 19, 2019. Pub. L. 115-55 § 2(x)(1). Legacy appeals were singled out as treated differently and the changes only applied if a claimant elected to participate in the new system. As the Veteran remained in the legacy system, the pre-AMA version of 38 C.F.R. § 3.103 applies in this matter. The facts of this case are distinguishable from Bowen. The Veteran’s offer for a Board hearing coincided with the offer for a DRO hearing, and he chose the DRO hearing instead of the Board hearing. In Bowen, the claimant requested a DRO hearing, but was later given opportunity to present testimony at a Board hearing. Here, the Veteran was not afforded a Board hearing after his request for a DRO hearing to the agency of original jurisdiction. He has not withdrawn his DRO hearing request. The Board cannot find he would not be prejudiced if he is denied opportunity for a DRO hearing. He is entitled to the hearing he seeks, and a remand for such hearing is necessary. The matters are REMANDED for the following action: The Agency of Original Jurisdiction should schedule the Veteran a hearing before a DRO at the San Juan RO addressing the remanded claims. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Baker, 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.