
    Felicitas A. MATA, Appellant, v. Anthony J. PRINCIPI, Acting Secretary of Veterans Affairs, Appellee.
    No. 90-1309.
    United States Court of Veterans Appeals.
    Dec. 28, 1992.
    Before KRAMER, HOLDAWAY, and STEINBERG, Associate Judges.
   ORDER

PER CURIAM.

Appellant, Felicitas A. Mata, wife of the deceased veteran, appeals an October 17, 1990, decision of the Board of Veterans’ Appeals (BVA or Board) denying recognition of Irwin and Allan as the veteran’s adopted children for Department of Veterans Affairs (VA) purposes. Felicitas A. Mata in the Case of Guillermo Mata, BVA 90- (Oct. 17, 1990). The Court has jurisdiction over the case under 38 U.S.C. § 7252(a) (formerly § 4052(a)).

The Court has reviewed the pleadings of the parties and the record on appeal and notes the following. In a letter dated April 12, 1989, from appellant to the Chairman of the BVA, appellant requested reconsideration of a 1989 BVA decision on the basis that all the requirements for adoption were met and that the Philippine court rendering the adoption decree had jurisdiction to do so. R. at 61. In the response dated June 5, 1989, from the Chairman to appellant, the Chairman stated that not all of the legal requirements for adoption had been met. R. at 62. In a response dated July 5, 1989, to the Chairman, appellant again asserted that the Philippine court had jurisdiction to render a decree and that the adoption was valid under both Philippine and United States law. R. at 63. The Chairman’s response dated September 18, 1989, did not dispute the adoption’s validity under Philippine law, but stated that it was not recognized for VA purposes. The Chairman also stated that appellant could reopen her claim by submitting new and material evidence to the Regional Office (RO). R. at 64-65. On October 17, 1989, appellant filed a letter with the Manila RO attaching a copy of her July 5, 1989, letter to the Chairman of the BVA and alleging error in the 1989 BVA decision with respect to the decision’s conclusions regarding the local court’s jurisdiction to render, and the validity of, the adoption decree. R. at 66. The letter asked that the RO again address those issues or, alternatively, that the case be reopened for new and material evidence.

The Court concludes that the issue of clear and unmistakable error was properly before the BVA when it rendered its decision in the case presently on appeal. Because the BVA failed to address this issue, the case must be remanded to the BVA. See Russell v. Principi, 3 Vet.App. 310, 313, (1992) (en banc) (claimant may not raise issue of clear and unmistakable error for the first time before the Court); Chisem v. Principi, 3 Vet.App. 322, 329, (1992) (where appellant raises the issue of clear and unmistakable error before the BVA, the BVA must review the issue, and requirement of liberal reading of all documents submitted prior to BVA decision extends to determining whether claim of clear and unmistakable error was raised to BYA) (citing Azurin v. Derwinski, 2 Vet.App. 489 (1992) (BVA must review all issues which are reasonably raised from a liberal reading of appellant’s substantive appeal)).

On consideration of the foregoing, it is

ORDERED that the BVA decision is vacated and the matter is remanded to the Board for adjudication of appellant’s claim that clear and unmistakable error was committed in the BVA's March 20, 1989, decision. In reaching its decision, the Board shall:

(1) Address whether the BVA found, or now finds, fraud in the procurement of the adoption, and, if so, provide reasons or bases, under 38 U.S.C. § 7104(d)(1) (formerly § 4004(d)(1)), in support of any such finding.

(2) Attach to its decision copies of all applicable Philippine law at the time of the adoption and address whether the judge in question had the authority to waive any applicable requirement of the law (including any requirement for a case study report by the Department of Social Welfare, written consent from natural children, and a trial custody period) and, if so, under what circumstances.

(3) Provide an adequate statement of reasons or bases for the Board’s finding as to whether the natural children of appellant had provided such written consent, taking into consideration the testimony of both the deceased veteran and his counsel before the Philippine court that the counsel had submitted to the Ministry of Social Services and Development written consent documents from all of the natural children (R. at 38-39).

(4) Address how the provisions of 38 U.S.C. § 101(4)(B), establishing standards for determining whether, for purpose of VA benefits, a person has been “legally adopted” under the laws of a foreign jurisdiction, can be reconciled with the position of VA expressed in Op.Gen. Counsel 21-79 (Mar. 30, 1979) that VA has authority to look behind the face of a foreign adoption to ensure that “all of the prerequisites to a foreign adoption have ... been satisfied”, id. at 2, beyond questions of fraud or lack of jurisdiction of the. court entering the decree, including a full discussion of the appropriate legislative history in connection with the applicable law. It is further

ORDERED that the Court retains jurisdiction because appellant’s claim for reopening based on new and material evidence has not been addressed by this Court. See Russell, 3 Vet.App. at 320. The Secretary of Veterans Affairs shall file with the Clerk (as well as serve upon appellant) a copy of any Board decision on remand. Within 50 days after any such final decision, appellant shall notify the Clerk whether she desires to seek further review by the Court.

HOLDAWAY, Associate Judge,

dissenting:

I dissent. It is only by considerable straining and stretching that my colleagues are able to “read in” a claim by appellant of clear and unmistakable error in previous adjudications. I would find that when appellant attempted to reopen with new and material evidence she produced none. I would therefore affirm the case but without prejudice to appellant to reopen properly on the basis of clear and unmistakable error. She can do so simply by alleging what the error was and why it was both clear and unmistakable at the time it was made and in light of the facts and the law extant at that time. I also express concern about the detailed instructions to the BVA that tell it, in effect, how to factually adjudicate the case. In doing so my colleagues tend to dilute the authority that Congress gave the BVA, and withheld from this Court, the role of a primary finder of fact.  