BVA9502347 
DOCKET NO.  93-01 665     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Manila,
Philippines

THE ISSUE

Entitlement to recognition as the surviving spouse of the veteran
for the purpose of establishing entitlement to Department of
Veterans Affairs benefits.

ATTORNEY FOR THE BOARD

T. D. Harrigan, Counsel

INTRODUCTION

The veteran had active military service from March 1945 to June
1946.

This case came before the Board of Veterans' Appeals (Board) on
appeal from a October 29, 1992 decision of the Manila,
Philippines Regional Office (RO) of the Department of Veterans
Affairs (VA).  The notice of disagreement was received on
November 10, 1992.  The statement of the case was issued on
December 9, 1992.  The substantive appeal was received on
December 21, 1992.

REMAND

The appellant contends that she and the veteran lived together
from 1960 until the veteran's death.  On an Application for
Dependency and Indemnity Compensation or Death Pension by a
Surviving Wife or Child (VA Form 21-534) received by the VA in
January 1992, the appellant indicated that she and the veteran
were married in September 1981.  She has submitted a copy of a
Marriage Contract which shows that they were married in November
1990.  It is unclear which alleged marriage the RO referred to in
denying the appellant's claim.  In addition, in the statement of
the case, the RO cited pertinent sections of the Family Code of
the Philippines, but did not explain the application of that law
to the facts in this case as required by 38 U.S.C.A. § 103(c)
(West 1991).  The Court has held that the board may not address a
question that has not been addressed by the RO, unless the Board
first assures that the claimant has not been prejudiced as a
result of denial of adequate notice and opportunity to present
arguments.  Bernard v. Brown, 4 Vet.App. 384 (1993).

In view of the foregoing, it is the opinion of the Board that
additional action is necessary before a final determination of
this claim.  Accordingly, the claim is REMANDED for the following
action:

1.  The RO should contact the appellant to
determine whether she is claiming to have
entered into a marital relationship with
the veteran prior to their ceremonial
marriage in 1990 and, if so, on what basis
she claims to have been married to him.

2.  The RO should render an administrative
decision with regard to the appellant's
claim which includes consideration of 38
U.S.C.A. § 103(a)  (West 1991) as well as a
discussion of the pertinent provisions of
Philippine law and its application to this
case.  In considering these provisions, the
RO should include specific findings as to
events in the first seven years following
the disappearance of the veteran's first
wife, and the RO should consider whether it
was reasonable for the appellant at the
time she attempted to marry the veteran to
assume that his spouse was dead.  Specific
findings should also be made with respect
to the reasonableness of the appellant's
beliefs regarding the initiation of a
marital relationship with the veteran prior
to 1990.  The effect of the provisions of
38 U.S.C.A. § 1318(c) (West 1991) with
regard to an alleged 1990 marriage should
also be considered.

3.  If that determination remains adverse
to the appellant, the appellant should be
provided with an appropriate supplemental
statement of the case citing those sections
of the law and regulations and explaining
their application and the application of
Philippine law to this case.  She should be
given an opportunity to respond thereto.

When the above action has been completed, the claims folder should
be returned to the Board for further appellate review.  No action
is required by the appellant unless she receives further notice.

          G. H. SHUFELT
          Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to be
assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals.  This remand is in the nature of a
preliminary order and does not constitute a decision of the Board
on the merits of your appeal.  38 C.F.R. § 20.1100(b) (1993).