BVA9500618 
DOCKET NO.  93-10 043     )       DATE
          )
          )

On appeal from a determination of the
Department of Veterans Affairs Medical Administration Service
in Phoenix, Arizona

THE ISSUE

Entitlement to payment or reimbursement by the Department of
Veterans Affairs (VA) for unauthorized medical expenses, in
connection with hospitalization at John C. Lincoln Hospital,
Phoenix, Arizona, from December 5 to 21, 1990.

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

J.P.  Reep,  Associate Counsel

INTRODUCTION

The veteran served on active duty from November 1961 to
November 1963.  Service department records also indicate Reserve
duty.  The veteran is deceased.  The appellant is his son.

This matter came before the Board of Veterans' Appeals (the Board)
on appeal from an August 1991 determination of the Medical
Administration Service of the Department of Veterans Affairs (VA)
Carl T. Hayden Medical Center, Phoenix, Arizona, denying approval
of reimbursement for the unauthorized medical expenses at issue.
In March 1993, the appellant testified before a traveling member
of the Board, sitting at Los Angeles, California.

REMAND

Pursuant to 38 C.F.R. § 17.82 (1993), a claim for payment or
reimbursement of services not previously authorized may be filed
by the veteran who received the services (or his/her guardian),
by the health care provider of said services, or by a person,
other than the veteran, who paid for the services.

Although the reimbursement claim at issue was initially filed by
Lincoln Hospital, the veteran's son eventually assumed appellant
status and appeared at the aforementioned March 1993 Travel Board
hearing.  It appears that the appellant may be acting on behalf
of his mother, who is ill.  However, it is not apparent from the
record that the appellant is the proper claimant, within the
meaning of 38 C.F.R. § 17.82 (1993).  By correspondence dated in
September 1994, the VA asked appellant to clarify his status with
regard to the claim, and to provide any supporting documentation.

Appellant responded with October 1994 correspondence, in which he
indicates that he is acting as the agent for his mother, Erma
Cull, (the veteran's widow).  He states that he is managing his
father's estate for his mother, who had suffered a stroke.  The
appellant also indicates that the estate has not paid any money
to Lincoln Hospital. Accompanying the letter were various
documents, none of which reflect the appellant's purported status
as legal representative of the veteran's estate.  Thus, the
identity of the proper representative of the estate remains
unclear, and must be resolved.

If the veteran's widow is in fact the legal representative of the
estate, and the appellant is acting on her behalf, another
procedural problem arises.  Pursuant to 38 C.F.R. § 20.301(a)
(1993), a notice of disagreement and/or substantive appeal may be
filed by a claimant personally, or by her representative if a
proper Power of Attorney or declaration of representation, as
applicable, is on record.  Otherwise, as applicable in this case,
if the claimant has a physical, mental, or legal disability which
prevents the filing of an appeal on her own behalf, a notice of
disagreement and/or a substantive appeal may be filed by a
fiduciary appointed to manage the claimant's affairs by the VA or
a court, or by a person acting as next friend if the appointed
fiduciary fails to take needed action or no fiduciary has been
appointed.  38 C.F.R. § 20.301(b) (1993).  Again, there is no
official documentation in the record indicating that the
appellant has been legally invested with power of attorney, or
otherwise appointed as a representative, fiduciary or best
friend.  In fact, the record indicates that power of attorney
currently resides in the American Legion.

Furthermore, in light of the foregoing deficiencies in the
record, the Board believes that associating the veteran's claims
folder with the reimbursement folder, would be useful.

Consequently, the case is REMANDED to the VAMC for the following
actions:

1.  The VAMC should establish which
individual legally represents the veteran's
estate.  If appellant maintains that he is
the legal representative of the estate, he
should be asked to provide documentation to
that effect.

2.  If the veteran's widow, Erma, legally
represents the estate, and the appellant is
acting on her behalf, a proper power of
attorney must be executed.

3.  The VAMC should associate the veteran's
claims folder with his reimbursement
folder.

4.  Then the case should be returned to the
Board for further appellate consideration.

The appellant need take no action until he is further notified.
The purpose of this remand is to satisfy due process
requirements.

          J. J.  SCHULE
          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).