Citation Nr: 0000942 Decision Date: 01/12/00 Archive Date: 01/27/00 DOCKET NO. 98-07 400 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUE Whether the veteran's current spouse may be recognized as his dependent spouse for VA purposes. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M.S. Lane, Associate Counsel INTRODUCTION The veteran served on active duty from January 1943 to June 1946. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 1997 determination by the Department of Veterans Affairs (VA) Regional Office (RO), which found that the veteran's current spouse could not be recognized as his dependent spouse for VA purposes. In an April 1993 rating decision, the RO denied a claim of entitlement to an increased rating for the veteran's service- connected residuals of a shell fragment wound to the right (major) forearm with injury to muscle groups VII and VIII. The veteran subsequently perfected a timely appeal regarding that decision. However, in October 1997, the RO granted an increased rating of 40 percent for the veteran's service connected residuals of a shell fragment wound to the right (major) forearm with injury to muscle groups VII and VIII. Thereafter, the veteran submitted a signed statement in which he indicated that he was satisfied with the 40 percent disability rating assigned by the RO and that he wished to withdraw his appeal as to that issue. 38 C.F.R. § 20.204 (1999). Thus, that matter is no longer before the Board on appeal. REMAND In December 1996, the veteran presented testimony at a formal hearing before a traveling member of the Board. A review of the record reveals that this hearing was conducted solely in regard to the veteran's claim of entitlement to an increased rating for the veteran's service-connected residuals of a shell fragment wound to the right (major) forearm with injury to muscle groups VII and VIII. At this time, the veteran had not yet filed to have his current spouse recognized as his dependent spouse for VA purposes. In December 1999, the veteran was advised that he was entitled to an additional hearing because the Board member who conducted the December 1997 hearing was no longer employed by the Board. See 38 U.S.C.A. § 7102 (West 1991); 38 C.F.R. § 20.707 (1999). While it not entirely clear from the record, the Board was apparently unaware at the time this letter was issued that the veteran had withdrawn his claim of entitlement to an increased rating for his service-connected residuals of a shell fragment wound in February 1998, or that he had since perfected a timely appeal regarding the issue of whether the veteran's current spouse may be recognized as the veteran's dependent spouse for VA purposes. Thereafter, the veteran responded by submitting a signed statement indicating that he desired to appear at a personal hearing before another traveling member of the Board. Therefore, although the issue presently on appeal is not the same issue that was on appeal before the Board at the time of the veteran's December 1997 hearing, the veteran has expressed a desire to obtain a personal hearing with respect to his present claim. Pursuant to 38 C.F.R. § 20.700 (1999), a hearing on appeal will be granted if an appellant, or an appellant's representative acting on his or her behalf, expresses a desire to appear in person. The Board shall decide an appeal only after affording the appellant an opportunity for a hearing. See 38 U.S.C.A. § 7107(b) (West 1991 & Supp 1999). Because the Board may not proceed with an adjudication of the veteran's claim without affording him an opportunity for the hearing he requested, a remand is required. Furthermore, the Board notes that the veteran's claim to have his current spouse recognized as his dependent spouse for VA purposes has been denied by the RO on the grounds that his divorce from his first wife in May 1979 could not be given full credit in the eyes of Civil Code of the Philippines, which the RO found to be the governing law in effect at that time. In essence, the RO concluded that for VA purposes the veteran was still considered to be married to his first wife. A review of the record shows that the veteran's first wife is alive and apparently residing in California. The veteran has submitted her Social Security number, her California driver's license number, and her new last name following her own remarriage. The Board believes that contested claims procedures are potentially applicable in this case, and that it is unclear the extent to which the RO has so far attempted to comply with such procedures. Thus, while this case is in remand status, the RO should determine to what extent contested claims procedures are applicable to this case. To the extent such procedures are found to be applicable, the RO should ensure that they are followed before returning the instant appeal to the Board. See 38 C.F.R. §§ 20.500 et seq., 20.713 (1999). Accordingly, this case is remanded for the following action: The RO should take steps to schedule the veteran for a travel board hearing at an appropriate location. Notification should be given to the veteran and his representative, and such notification should be documented and associated with the veteran's claims folder. With respect to the veteran's first spouse, the RO (or the station at which the travel board hearing is to be conducted) the should insure that all applicable contested claims procedures are followed. The veteran need take no action unless otherwise notified. While the case is in remand status, the veteran and/or his representative may furnish additional evidence and argument to the RO. See Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109, 112 (1995); Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. Barry F. Bohan Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (1999).