Citation Nr: 21040740 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 16-29 712 DATE: July 6, 2021 REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1943 to February 1946 and from March 1947 to February 1956. The Veteran died in September 2014. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The appellant's claim was remanded for additional development in May 2019 and June 2020. The Board notes that the issue of entitlement to Dependency and Indemnity Compensation (DIC) benefits under 38 U.S.C. § 1151 was raised by the appellant in correspondence received in February 2017. The issue, however, has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ); therefore, the Board does not have jurisdiction over the claim. The issue is referred to the RO for appropriate action, to include informing the appellant and her representative that a claim for benefits must be submitted on the application form prescribed by the Secretary of VA and providing such forms. See 38 C.F.R. § 3.150 (a) (providing for furnishing of appropriate application form upon request for VA benefits); 38 C.F.R. § 20.904 (b) (continuing to provide for Board referral of unadjudicated claims). 1. Entitlement to service connection for the cause of the Veteran's death is remanded. The Board notes that in October 2016, the appellant returned a VA "Appeal Hearing Options" selection form that offered her 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 appellant selected the option for a DRO hearing. She concurrently submitted a VA Form 9 (substantive appeal) for related to the issue on appeal. On that form, she did not indicate that she wanted a Board hearing, but wrote in that she desired a DRO hearing at the local RO. The appellant was not provided the DRO hearing she requested in the October 2016 submission. Failure to offer the appellant 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 an appellant 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 or she was not provided a hearing at the regional office (RO). In that case, CAVC concluded that the appellant's denial of a DRO hearing violated the provisions of 38 C.F.R. § 3.103 (c)(1). 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 appellant's appeal has 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 appellant's offer for a Board hearing coincided with the offer for a DRO hearing, and she 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 appellant was not afforded a Board hearing after her request for a DRO hearing to the agency of original jurisdiction. In May 2021, the appellant was sent a letter requesting that she clarify her hearing request. The letter informed the appellant that if she did not respond, "the Board will use your previous selection to determine your choice of hearing." Here, the appellant's most recent selection was for a DRO hearing. She has not withdrawn her DRO hearing request. The Board cannot find she would not be prejudiced if she is denied opportunity for a DRO hearing, 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 issue on appeal. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.M. Johnson, 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.