Citation Nr: 1501601	
Decision Date: 01/13/15    Archive Date: 01/20/15

DOCKET NO.  12-25 889	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUES

1.  Entitlement to service connection for the cause of the Veteran's death, for burial benefit purposes.

2.  Entitlement to recognition as the Veteran's surviving spouse for purposes of VA death benefits.

3.  Entitlement to disability compensation pursuant to 38 U.S.C.A. § 1151 for metastatic lung cancer as a result of claimed lung puncture, for accrued benefit purposes.  

4.  Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C.A. § 1151.


5.  Entitlement to disability compensation pursuant to 38 U.S.C.A. § 1151 for gout and the loss of a limb, to include on the basis of clear and unmistakable error (CUE).


REPRESENTATION

Appellant represented by:	James M. McElfresh II, Claims Agent


ATTORNEY FOR THE BOARD

S. Mishalanie, Counsel


INTRODUCTION

The Veteran served on active duty from January 1979 to November 1981.  He died in November 2010.  The appellant contends that she was in a common law marriage with the Veteran at the time of his death.

This case comes before the Board of Veterans' Appeals (Board) on appeal from decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) Pension Management Center in St. Paul, Minnesota.  

In December 2010, the appellant's representative filed an informal claim, noting that the Veteran had pending claims for service connection for bilateral hearing loss, bilateral tinnitus, posttraumatic stress disorder (PTSD), and disability compensation pursuant to 38 U.S.C.A. §1151 for lung cancer.  On behalf of the appellant, who was identified as the Veteran's common law wife, he requested VA adjudicate "all potential claims reasonably raised by the evidence of record."  In December 2010, the appellant filed a formal application for reimbursement from accrued amounts due to a deceased beneficiary (VA Form 21-601).  She indicated that she lived with and supported the Veteran for 10 1/2 years and had paid $985.25 in burial expenses.  She also submitted a formal application for burial benefits (VA Form 21-530) along with a receipt for the burial expenses.

In a May 15, 2012 rating decision, the RO granted service connection for tinnitus and bilateral hearing loss for accrued purposes; denied §1151 compensation for metastatic lung cancer for accrued purposes; denied DIC under 38 U.S.C.A. § 1151; and deferred service connection for PTSD for accrued purposes.  In an accompanying letter, the RO notified the appellant that it had awarded her $300 for nonservice-connected burial expenses, but denied reimbursement for service-connected burial expenses.  

In a May 16, 2012 rating decision, the RO granted service connection for PTSD, for accrued purposes.  In a May 17, 2012 letter, the RO notified the appellant that it had approved her claim for accrued benefits, noting that she would receive a check of $685.25 in the near future.  This amount represented reimbursement of the remaining burial expenses that she paid - $985.25 minus the $300 that had already been reimbursed.  

In June 2012, the appellant's representative filed a notice of disagreement (NOD), disagreeing with the denial of §1151 compensation for metastatic lung cancer. 

In August 2012, the RO issued a statement of the case (SOC), addressing entitlement to §1151 compensation for metastatic lung cancer for accrued purposes, and DIC under 38 U.S.C.A. § 1151.  In September 2012, the appellant submitted a timely substantive appeal (VA Form 9).  In correspondence dated in October 2012, the appellant's representative continued to argue that VA was in error to deny "accrued benefits to the widow" pursuant to 38 U.S.C.A. § 1151.  

In a supplemental SOC (SSOC) issued on May 3, 2013, the RO recharacterized the issue of entitlement to DIC under 38 U.S.C.A. § 1151 as "service connection for the cause of death for burial benefit purposes."  The RO simultaneously sent a letter to the appellant requesting that she fill out an application for DIC, death pension and accrued benefits by a surviving spouse (VA Form 21-534).

In another letter dated on May 3, 2013, the RO sent a letter to the appellant denying her claim for disability compensation pursuant to 38 U.S.C.A. § 1151 for gout and the loss of a limb, to include on the basis of CUE.  The appellant's representative filed a NOD with that decision later that month.  

Based on the correspondence received from the appellant's representative, it is clear that the appellant is seeking entitlement to death benefits (accrued and DIC) as a surviving spouse - not merely for reimbursement as an individual who paid the Veteran's funeral expenses.  Although she did not file a VA Form 21-534 (a formal application for DIC, death pension and accrued benefits by a surviving spouse), her representative has continually requested "widow's benefits" on her behalf.  Moreover, the RO issued a SOC in August 2012 denying DIC benefits under 38 U.S.C.A. § 1151 and the appellant filed a timely substantive appeal.  Therefore, based on the most liberal interpretation of the pleadings, the Board has recharacterized the issues on appeal to include entitlement to accrued and DIC death benefits.  Because recognition as a surviving spouse is a prerequisite to entitlement in this case, this issue has also been included on the title page.  

The Veteran's paper claims file and electronic folder in Virtual VA and the Veterans Benefits Management System (VBMS) have been reviewed in conjunction with the disposition of the issues on appeal.  VBMS contains no documents regarding the Veteran or the appellant.  Virtual VA includes a copy of the May 2013 NOD referenced above.  Otherwise the documents are duplicative of the evidence in the paper claims file or irrelevant to the issues on appeal.

The issue of entitlement to service connection for the cause of the Veteran's death for burial benefit purposes is being dismissed as moot.  The remaining issues are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

In May 2012, the awarded the appellant $985.25 in burial benefits; this was the full amount that she requested.


CONCLUSION OF LAW

The criteria for dismissal of the appeal for service connection for the cause of the Veteran's death for burial benefit purposes, by the Board have been met.  38 U.S.C.A. § 7105 (d)(5) (West 2014); 38 C.F.R. § 20.101(d) (2014).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105 (West 2014). 

A burial allowance is payable under certain circumstances to cover the burial and funeral expenses of a Veteran and the expense of transporting the body to the place of burial.  38 U.S.C.A. § 2302 (West 2014); 38 C.F.R. § 3.1600 (2014).  A greater burial allowance is available if the Veteran died from a service-connected disability.  Up to $300 is available in non-service connected burial benefits and up to $2,000 is available in service connected burial benefits.  38 U.S.C.A. §§ 2302; 2307 (West 2014); 38 C.F.R. § 3.1600 (2014); VA's Adjudication Manual, M21-1, Part I, Appendix B.  

Here, the appellant sought reimbursement for funeral expenses in the amount of $985.25.  The amount of $300 was paid as a non-service connected burial allowance.  The remaining $685.25 was paid as a reimbursement from accrued benefits owed to the Veteran at the time of his death.  Because the appellant was paid the full amount requested, the issue of service connection for the cause of the Veteran's death for burial benefit purposes is moot.  The payment of $982.25 in burial expenses represents a full grant of the benefits requested.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977).  Hence, there remains no allegation of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review this issue and it is dismissed.


ORDER

The appeal for service connection for the cause of the Veteran's death for burial benefit purposes is dismissed.


REMAND

The claims for disability compensation pursuant to 38 U.S.C.A. § 1151 for metastatic lung cancer for accrued benefit purposes, and DIC under 38 U.S.C.A. § 1151, to include recognition as the surviving spouse of the Veteran, are being remanded for further notice and development.  The claim for disability compensation pursuant to 38 U.S.C.A. § 1151 for gout and the loss of a limb, to include on the basis of CUE is being remanded for issuance of a SOC.

First, a remand is required to allow the appellant to file a formal claim for death benefits as a surviving spouse (VA Form 21-534) and to ensure she receives adequate notice under 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159 to substantiate her claims.  Since she claims she had a common law marriage with the Veteran before his death, the notice must include information and evidence necessary to establish a common law marriage in the state of Utah, which was the state where she and the Veteran resided prior to his death.

The state of Utah recognizes common law marriages as valid.  In Utah, a common law marriage is recognized "if a court or administrative order establishes that it arises out of a contract between a man and a woman who:  (a) are of legal age and capable of giving consent; (b) are legally capable of entering a solemnized marriage under the provisions of this chapter; (c) have cohabitated; (d) mutually assume the marital rights, duties, and obligations; and (e) who hold themselves out as and have acquired a uniform and general reputation as husband and wife."  The determination or establishment of a marriage under this section shall occur during the relationship or within one year following the termination of that relationship.  Utah Code Ann. § 30-1-4.5 (West 2014).

In cases involving alleged common law marriages, there must be proof of a common law marriage for the purpose of receiving VA benefits.  Supporting evidence of common law marriage should include affidavits or certified statements of one or both of the parties to the marriage, if living, setting forth all of the facts and circumstances concerning the alleged marriage, such as the agreement between the parties at the beginning of their cohabitation, the period of cohabitation, places and dates of residences, and whether children were born as the result of the relationship.  This evidence should be supplemented by affidavits or certified statements from two or more persons who know as the result of personal observation the reputed relationship which existed between the parties to the alleged marriage including the periods of cohabitation, places of residences, whether the parties held themselves out as husband and wife, and whether they were generally accepted as such in the communities in which they lived.  38 C.F.R. § 3.205(a) (2014).

Second, a remand is required for issuance of a SOC.  In a May 2013 decision, the RO denied disability compensation pursuant to 38 U.S.C.A. § 1151 for gout and the loss of a limb, to include on the basis of CUE, and the appellant filed a NOD later that month.  Because the NOD remains unprocessed, the Board finds that a remand is necessary for issuance of a SOC.   See Manlincon v. West, 12 Vet. App 238, 240-241 (1999). 

Accordingly, the case is REMANDED for the following actions:

1.  Issue a SOC addressing entitlement to disability compensation pursuant to 38 U.S.C.A. § 1151 for gout and the loss of a limb, to include on the basis of CUE.  If an appeal is perfected, then the appeal should be returned to the Board for further appellate consideration, as appropriate.

2.  Send a letter to the appellant requesting that she fill out a VA Form 21-534 (a formal application for DIC, death pension, and accrued benefits by a surviving spouse).  

The letter must also provide the appellant with adequate notice pursuant to 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159 regarding her claims for disability compensation pursuant to 38 U.S.C.A. § 1151 for metastatic lung cancer for accrued benefit purposes and DIC under 38 U.S.C.A. § 1151.  

The letter must also include notice of the evidence necessary to establish a common law marriage for purposes of establishing recognition as a surviving spouse for VA death benefit purposes.  In Utah, a common law marriage is recognized "if a court or administrative order establishes that it arises out of a contract between a man and a woman who:  (a) are of legal age and capable of giving consent; (b) are legally capable of entering a solemnized marriage under the provisions of this chapter; (c) have cohabitated; (d) mutually assume the marital rights, duties, and obligations; and (e) who hold themselves out as and have acquired a uniform and general reputation as husband and wife."  The determination or establishment of a marriage under this section shall occur during the relationship or within one year following the termination of that relationship.  

As part of the notice, the appellant should be asked to submit supporting evidence and statements concerning her claimed common law marriage to the Veteran.  Supporting evidence of a common law marriage could include statements from the appellant and other appropriate individuals with knowledge concerning the alleged marriage, such as whether the appellant and Veteran generally held themselves out in the community as husband and wife and/or the reputed nature of their relationship, the agreement and intent between the parties at the beginning of their cohabitation, the period of cohabitation, places and dates of residences, and whether children were born as a result of the relationship.

3.  After completing the above actions, the AOJ should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs.  

4.  Thereafter, the AOJ should readjudicate the issues remaining on appeal.  If any benefit sought on appeal remains denied, the appellant and her representative should be provided with a SSOC and afforded a reasonable opportunity to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order. 

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

These claims must be afforded expeditious treatment.  The law requires that all claims remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



______________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs