Citation Nr: A24051237 Decision Date: 08/29/24 Archive Date: 08/29/24 DOCKET NO. 190604-183459 DATE: August 29, 2024 REMANDED Entitlement to service connection for prostate cancer on a direct basis is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1970 to February 1974. The Veteran died in February 2020. The Appellant is the Veteran's surviving spouse. The rating decision on appeal was issued in March 2019 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. See 38 C.F.R. § 3.2400(a)(1). In the June 2019 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on June 20, 2023. Therefore, the Board may only consider the evidence of record at the time of the March 2019 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Appellant or representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. However, because the Board is remanding the claim of service connection for prostate cancer, any evidence the Board could not consider will be considered by the AOJ in the adjudication of that claim. 38 C.F.R. § 3.103(c)(2)(ii). In September 2023, the Board granted service connection for prostate cancer on a presumptive basis pursuant to the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act) but denied service connection on a direct basis. The Appellant appealed the September 2023 Board decision to the United States Court of Appeals for Veterans Claims (the Court). In a July 2024 Joint Motion for Partial Remand (JMPR), the Court vacated the portion of the September 2023 Board decision denying entitlement to service connection on a direct basis for prostate cancer and remanded this matter for readjudication. 1. Entitlement to service connection for prostate cancer on a direct basis is remanded. The Appellant seeks service connection for the Veteran's prostate cancer on a direct basis. In the July 2024 JMPR, the Court found remand is required to correct an error by the AOJ in satisfying a regulatory or statutory duty prior to the March 2019 rating decision on appeal. 38 C.F.R. § 20.802. Specifically, the AOJ failed to notify the Veteran of his right to a hearing prior to the March 2019 rating decision. 38 C.F.R. §3.103(d)(1). Appellants have a right to fair process in the development and adjudication of their claim before VA including notice and an opportunity to respond. Bryant v. Wilkie, 33 Vet. App. 43, 46 (2020); Smith v. Wilkie, 32 Vet. App. 332, 337-38 (2020); Thurber v. Brown, 5 Vet. App. 119, 123 (1993). Therefore, because the Veteran was not provided notice of his right to a hearing before the AOJ issued its initial decision, remand is required to provide the Appellant notice of the right to a hearing. The matter is REMANDED for the following action: Notify the Appellant and her representative of her right to a pre-decisional hearing before the VA Regional Office in accordance with 38 C.F.R. § 3.103 (d)(1). D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Aoughsten, 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.