Citation Nr: 1400287 Decision Date: 01/06/14 Archive Date: 01/23/14 DOCKET NO. 08-36 981 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Whether new and material evidence has been received to establish entitlement to recognition of the appellant as the surviving spouse of the Veteran for purposes of consideration for Department of Veterans Affairs (VA) death benefits. REPRESENTATION Appellant represented by: Robert W. Legg, Esq. ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from July 1982 to July 1992. He died in October 2003. The appellant was his wife at the time of his death. She appealed to the Board of Veterans' Appeals (Board) from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, denying service connection for the cause of the Veteran's death. The subsequent November 2008 statement of the case (SOC) adjudicated the issue of whether she may be considered the Veteran's surviving spouse for purpose of VA death benefits. Given that status as a surviving spouse for VA purposes was already denied pursuant to a final January 2004 RO decision, the matter before the Board is characterized as a petition to reopen. The Board previously remanded this matter in August 2012. Thereafter, in October 2013, following return of this case to the Board, additional evidence was received with a waiver of RO initial consideration. See 38 C.F.R. §§ 20.800, 20.1304 (2013). As herein, the Board recognizes the appellant's status as a surviving spouse under 38 C.F.R. § 3.54(c)(1) (for marriage within 15 years of military discharge following in-service injury or disease that led or contributed to the cause of death), there is necessarily raised the issue, not formally on appeal, of entitlement to service connection for the cause of the Veteran's death. This additional claim is hereby referred to the RO for appropriate disposition in light of the instant Board decision. FINDINGS OF FACT 1. In a January 2004 unappealed decision, the RO denied the appellant's original claim for VA death benefits due to not meeting the criteria for basic eligibility as a surviving spouse. 2. Additional evidence has since been obtained which relates to an unestablished fact necessary to substantiate this previously denied claim. 3. The appellant's marriage to the Veteran, while less than one-year, transpired less than 15 years after his military separation, and followed in-service hypertension which directly led or contributed to the cause of death in this case. CONCLUSIONS OF LAW 1. The January 2004 RO decision denying recognition of the appellant as surviving spouse for VA purposes is a final and binding determination. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.104(a), 20.200, 20.302 (2013). 2. There is new and material evidence since that decision to reopen this claim. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156(a) (2013). 3. The criteria are met to establish recognition of the appellant as the Veteran's surviving spouse for VA purposes. 38 U.S.C.A. § 101(3) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.1(j), 3.50, 3.53 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The case disposition below, to reopen and grant the claim on appeal, obviates need for comprehensive discussion of whether VA's duties of notice and assistance to the claimant were effectively met. Entitlement to VA benefits as a "surviving spouse" of a veteran requires that the appellant be a person whose marriage to the veteran meets the requirements of 38 C.F.R. § 3.1(j); who was the spouse of the veteran at the time of the veteran's death; who lived with the veteran continuously from the date of marriage to the date of the veteran's death, except where there was a separation that was due to the misconduct of, or procured by, the Veteran without the fault of the spouse; and has not remarried since the death of the Veteran or lived with another person and held himself/herself out openly to the public to be the spouse of such other person. See 38 U.S.C.A. § 101(3); 38 C.F.R. §§ 3.50(b). Additionally, for VA dependency and indemnity compensation benefits entitlement purposes, the Veteran must have been married to the appellant for one year or more, or for any period of time if a child was born of the marriage. In the alternative, the appellant may have been married to the Veteran before the expiration of 15 years after termination of the period of service in which the injury or disease which caused the Veteran's death was incurred or aggravated. 38 C.F.R. § 3.54(c). In the January 2004 RO prior final decision, the RO determined the appellant was not the surviving spouse of the Veteran since they were not married for one year or more prior to the Veteran's death. New and material evidence is required to reopen a final decision. See 38 C.F.R. § 3.156(a). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. There is now sufficient evidence upon which to reopen and grant the instant claim. In a recently obtained October 2013 private medical opinion of Dr. G.K., the opinion proffered was that the cause of the Veteran's death appeared to be from sudden cardiac arrhythmia, as compared to a cerebrovascular accident, and moreover, that the cause of death was at least as likely as not related to hypertension the Veteran had developed in service. Affording full probative weight and credibility to this physician's report, as done in the reopening stage, the report clearly identifies in-service incurrence of the hypertension which caused (or substantially and materially contributed to) the Veteran's death, which transpired within the requisite 15-year period after separation from service and therefore meets the exception to the one-year term of marriage requirement, pursuant to 38 C.F.R. § 3.54(c)(1). Moreover, the reopened claim warrants grant of the claim for basic eligibility for VA death benefits as a surviving spouse, given that the Board's independent analysis of the probative value of the October 2013 medical opinion finds it to be grounded in the documented medical history, including in-service hypertension, and a persuasive rationale. Whereas the August 2012 VA medical opinion concluded otherwise on the subject of causation, the evidence is at least in a state of relative equipoise as to whether the cause of the Veteran's death is due to service incurrence, and under such circumstances reasonable doubt will be resolved in the claimant's favor through application of VA's benefit-of-the-doubt doctrine. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The criteria are met for recognition as a "surviving spouse" for VA purposes based upon meeting a valid exception to the one-year length of marriage requirement. ORDER The claim for recognition of the appellant as the surviving spouse of the Veteran for purposes of VA death benefits is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs