Citation Nr: 0006243	
Decision Date: 03/08/00    Archive Date: 03/17/00

DOCKET NO.  98-10 505A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, 
Nebraska


THE ISSUES

1.  Entitlement to service connection for the cause of the 
veteran's death.

2. Entitlement to Dependents' Educational Assistance under 
Chapter 35, Title 38, United States Code.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States


WITNESSES AT HEARING ON APPEAL

Appellant and son



ATTORNEY FOR THE BOARD

Jason R. Davitian, Associate Counsel


INTRODUCTION

The veteran served on active duty from February 1943 to 
December 1944.

This case is before the Board of Veterans' Appeals (BVA or 
Board) on appeal from a November 1997 rating decision of the 
Department of Veterans Affairs (VA) Regional Office in 
Lincoln, Nebraska (RO), which denied the benefits sought on 
appeal.


REMAND

The certificate of the veteran's death indicates he passed 
away in August 1997.  The appellant is the veteran's 
surviving spouse.

A preliminary review of the record indicates that the 
appellant and her son testified during a personal hearing at 
the RO on July 7, 1998.  During the hearing, the appellant 
and her son apparently testified as to why they believe the 
medical evidence shows that the veteran's death should be 
service-connected.  Thereafter, a hearing officer denied the 
issues on appeal, a Supplemental Statement of the Case was 
issued, and the appellant submitted a timely substantive 
appeal.  Although the veteran's claims file contains numerous 
items of medical and lay evidence 

submitted at or shortly before the hearing, it does not 
include a transcript of the hearing.  The Board believes that 
a copy of the hearing transcript is necessary for the proper 
adjudication of these claims.  

Since the transcript of the July 1998 hearing is presumably 
in the custody of VA, a finding of well-groundedness is not a 
prerequisite for associating it with the veteran's claims 
file.  "[T]he Secretary had constructive, if not actual, 
knowledge of those items [generated by the VA]."  Bell v. 
Derwinski, 2 Vet. App 611, 613 (1992).

In light of the above, and in order to give the appellant 
every consideration with respect to the present appeal, it is 
the Board's opinion that further development is necessary.

Accordingly, this case is REMANDED for the following action:

1.  The RO should obtain and associate 
with the claims file the transcript of 
the July 7, 1998, personal hearing before 
a RO hearing officer.   

2.  Then, after undertaking any 
additional development, the RO should 
return the veteran's claims file to the 
Board for final adjudication of the 
appellant's claims.  

The purpose of the REMAND is to obtain additional 
development, and the Board does not intimate any opinion as 
to the merits of the case, either favorable or unfavorable, 
at this time.  The appellant is free to submit any additional 
evidence she desires to have considered in connection with 
her current appeal.  No action is required of the appellant 
until she is notified.

The appellant has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded to 
the regional office.  Kutscherousky v. West, 12 Vet. App. 369 
(1999).



		
	U. R.  POWELL
	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).