BVA9502625 
DOCKET NO.  92-55 053     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Pittsburgh,
Pennsylvania

THE ISSUE

Entitlement to death pension benefits under the provisions of
§ 306 of Public Law 95-588 (§ 306) after December 31, 1980.

REPRESENTATION

Appellant represented by: The American Legion

ATTORNEY FOR THE BOARD

T. D. Harrigan, Counsel

INTRODUCTION

The veteran had active military service from August 1944 to July
1946.  He died in July 1977.  The appellant is his surviving
spouse.

This case came before the Board of Veterans' Appeals (Board)
apparently on appeal from an August 21, 1989 decision of the
Pittsburgh, Pennsylvania Regional Office (RO) of the Department
of Veterans Affairs (VA).  On August 30, 1982 the RO had issued a
decision terminating the appellant's § 306 death pension benefits
effective January 1, 1981.  A memorandum from the appellant's
representative received on September 12, 1989 was accepted by the
RO as a  notice of disagreement.  The statement of the case was
issued on October 4, 1990.  The substantive appeal was received
on October 17, 1990.  In April 1993 the Board entered a decision
dismissing the appeal because of failure of the appellant to file
a timely notice of disagreement to the August 30, 1982 decision.

The appellant appealed her case to the United States Court of
Veterans Appeals (Court).  In an order dated October 7, 1994, the
Court vacated the Board's April 1993 decision and remanded the
case to the Board with instructions that the Board consider and
discuss the issue of whether the appellant's protected death
pension benefits under § 306 were properly terminated in 1981
and, if not, whether she is entitled to restoration of those
benefits.  The Board was also directed to address the issues of
the reopening of the claim for § 306 benefits after the August
1982 denial and the validity of the September 1989 notice of
disagreement.

REMAND

The statement of the case provided to the appellant set forth the
law and regulations pertaining to termination of the appellant's
§ 306 death pension benefits effective January 1, 1981.  However,
the Court has also instructed the Board to address the issues of
the reopening of the claim for § 306 benefits after the August
1982 denial and the validity of the September 1989 notice of
disagreement.  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).  The RO has
not addressed the latter issues which are necessary preliminary
determinations to be made in this case.  The appellant may be
prejudiced by not receiving information regarding the law and
regulations applicable to those issues and having an opportunity
to submit evidence and argument with regard to them.

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 render a decision with
regard to the issues of the reopening of
the claim for § 306 benefits in 1988, after
the August 1982 denial, and the validity of
the September 1989 notice of disagreement.

2.  If any determination remains adverse to
the appellant, she should be provided with
an appropriate supplemental statement of
the case citing those sections of the law
and regulations and explaining their
application to this case.  The RO should
ensure that the appellant has been apprised
of all the pertinent issues in her case and
has been given the opportunity to present
evidence and make comment and argument with
respect to any issue she should wish to
address.

When the above action has been completed, the case should be
returned to the Board for further appellate review.

          E. M. KRENZER
          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).