Citation Nr: 0813934 Decision Date: 04/28/08 Archive Date: 05/08/08 DOCKET NO. 07-05 568 ) DATE ) ) Received from the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to nonservice-connected death pension benefits. 2. Whether new and material evidence has been received to reopen the appellant's claim for Dependents' Indemnity Compensation (DIC) benefits. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The veteran had active military service from August 1941 to November 1948, and from April 1952 to April 1962. He died on December [redacted], 1989. The appellant alleges that she is the veteran's surviving spouse for the purpose of VA benefits. These matters come to the Board of Veterans' Appeals (Board) following July 2004 and January 2006 decisions. The veteran's claims file was received from the Milwaukee Pension Center located at the Milwaukee RO. The appellant currently resides in the state of Louisiana. Jurisdiction of the claims file is otherwise with the New Orleans VARO. In April 2008, a Deputy Vice-Chairman of the Board granted the appellant's motion, filed through her representative, to advance the appeal on the Board's docket pursuant to 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c) (2007). (By the above-noted July 2004 decision, the agency of original jurisdiction (AOJ) denied the appellant's petition to reopen her claim for DIC (i.e., service connection for the cause of the veteran's death or DIC under the provisions of 38 U.S.C.A. § 1318). In September 2004, the AOJ received a statement from the appellant in which she noted her disagreement (NOD) with its July 2004 decision. It appears that the appellant has not been provided a statement of the case (SOC) in response to her NOD on her claims for DIC. Consequently, the Board does not have jurisdiction to review the issues. 38 C.F.R. §§ 20.200, 20.202 (2007). Nevertheless, the claim for DIC based on service connection for the cause of the veteran's death or under the provisions of 38 U.S.C.A. § 1318 will be remanded with instructions to issue an SOC.) REMAND The Board notes that a review of the evidentiary record raises questions concerning the appellant's eligibility as the veteran's surviving spouse. In this regard, a surviving spouse for VA purposes is defined as a person of the opposite sex whose marriage to the veteran meets the requirements of 38 C.F.R. § 3.1(j) (2007) and who was the spouse of the veteran at the time of the veteran's death; and (1) 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 which was due to the misconduct of, or procured by, the veteran without fault of the spouse; and (2) has not remarried or has not since the death of the veteran lived with another person of the opposite sex and held himself/herself out openly to the public to be the spouse of such other person. 38 C.F.R. §§ 3.50(b), 3.53 (2007). The provisions of 38 C.F.R. § 3.1(j) require that "marriage" be valid under the law of the place where the parties resided at the time of marriage, or the law of the place where the parties resided when the right to benefits accrued. A certified copy of a state of Arkansas marriage license reflects that the appellant and the veteran were married in April 1950. A copy of a divorce decree from the Independence Chancery Court reflects that the appellant and the veteran were apparently divorced in August 1953. The divorce decree was not signed by either the appellant or the veteran, or by Court personnel, nor is there any affirmative indication on its face that the decree was filed with the Chancery Court clerk. Subsequently, the veteran remarried and filed a new marriage certificate with VA reflecting his marriage in July 1961 to L. J. A March 1976 Declaration of Marital Status (VA Form 21-686c) reflects the veteran's report that he had divorced the appellant in August 1953 and that he was then married to L. J. Death certificates reflect that L. J. died in February 1989 and that the veteran died in December 1989. In March 1990, the appellant filed an application for DIC benefits (VA Form 21-534). In the application, the appellant identified that she had been married only once and that had been to the veteran. The appellant also identified that she and the veteran had had a child together, but that she and the veteran had not lived continuously together during the marriage. In May 1990, the agency of original jurisdiction (AOJ) denied the appellant's claim for death pension benefits on the basis that the appellant and the veteran had been divorced. Later that month, in a statement in support of claim (VA Form 21-4138), the appellant notified the AOJ that she was not aware of any divorce between herself and the veteran. The appellant submitted a statement from the Chancery Court in Independence County, Arkansas reflecting that a search of that Court's records from 1950 forward did not reveal any record of a divorce of the appellant and the veteran. In June 1992, following a hearing with the appellant, the AOJ concluded that there was no evidence that the appellant and the veteran had been divorced prior to the veteran's death. This was apparently concluded because the divorce decree submitted by the veteran to VA during his lifetime had not been signed and had apparently never been properly filed. Furthermore, in July 1992, the AOJ conceded that the appellant had met the continuous cohabitation element pertaining to a "surviving spouse" under VA regulations in that, apparently, while the appellant and the veteran had lived apart for many years prior to his death, such separation was due to no fault of the appellant. In an August 1998 Board decision, the appellant was identified as a widow of the veteran. Following the appellant's filing to reopen her claims in December 2003, the AOJ undertook a Social Security Administration (SSA) data inquiry in March 2005 using the appellant's social security number. The SSA data inquiry identified the appellant as receiving SSA benefits (the appellant was noted as being the primary claimant) under a different last name (or surname) than that of the veteran. Furthermore, the appellant's then address was noted to be in the state of Missouri. The AOJ sent the appellant a notice letter later in March 2005 requesting clarification with respect to the discrepancy in surnames. In August 2005, the appellant notified the AOJ that the primary reason she had used a different surname was to keep her sisters from finding out where she lived. A subsequent SSA data inquiry in December 2005 noted the appellant as receiving SSA benefits (the appellant was noted as a widow) and her listed name included the veteran's surname and not the surname noted by SSA in the March 2005 data inquiry. The appellant was also noted to be living in Louisiana. The Board notes that on her original August 1950 marriage certificate, the appellant's listed name (maiden) was C. C. Following her marriage to the veteran, the appellant's name changed to C. S. In this case, the letter S reflects the surname of the veteran. At the time she filed her application for DIC and death pension benefits in May 1990, the appellant signed her name on both the DIC application form as well as a VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative) as C. H. S. In a June 1993 statement, the appellant signed her name as C. E. S. (The letter E appears to be representative of the appellant's middle name). As noted above, the appellant was found in March 2005 to be receiving SSA benefits under a different surname. The name noted in the SSA data inquiry was C. S. H. The name associated with the letter H was the same in the May 1990 application and the SSA data inquiry. It appears to the Board that this name is best described as a new surname. As there is evidence that the appellant has identified herself using a surname other than her maiden name or the veteran's surname, it raises a question as to whether the appellant was married to a person other than the veteran prior to his death or whether she is currently married. If the appellant did in fact remarry at any time prior to the veteran's death, even is such remarriage later was voided by death, annulment, or divorce, such action by the appellant would appear to demonstrate a lack of continuous cohabitation even assuming that, for VA purposes, she has been recognized as never officially having been divorced from the veteran. Thus, any marriage by the appellant to a person other than the veteran prior to the veteran's death, or any current marriage, could preclude her from being recognized as the veteran's surviving spouse for VA benefits. Under the circumstances, especially in light of the use of a different surname by the appellant when obtaining SSA benefits, the Board finds that it would be helpful in deciding this appeal if additional information concerning the appellant's past and current marital status was obtained. Finally, as noted in the Introduction above, in a July 2004 decision, the AOJ denied the appellant's petition to reopen her claims for service connection for the cause of the veteran's death and for benefits under the provisions of 38 U.S.C.A. § 1318. In September 2004, the AOJ received a statement from the appellant in which she noted her disagreement with its July 2004 decision. It does not appear to the Board, that the appellant has been issued an SOC in response to her NOD on her claims. Here, the next step in the appellate process is for the AOJ to issue the appellant an SOC summarizing the evidence relevant to her petition to reopen her claim for DIC, under whatever theory, the applicable legal authority, and the reasons that the AOJ relied upon in making its determination. See 38 C.F.R. § 19.29 (2007); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v Gober, 10 Vet. App. 433, 436 (1997). Consequently, the claim for DIC benefits must be remanded to the AOJ for the issuance of an SOC. The Board emphasizes, however, that to obtain appellate review of any issue not currently in appellate status, a substantive appeal must be filed after an SOC is issued by the AOJ. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.201, 20.202 (2007). For the reasons stated, this case is REMANDED for the following actions: 1. The AOJ should issue to the appellant and her representative, if not previously issued, an SOC addressing her petition to reopen her claim for DIC benefits, including under the theory of service connection for the cause of the veteran's death and under the provisions of 38 U.S.C.A. § 1318. Along with the SOC, the AOJ must furnish to the appellant and her representative a VA Form 9 (Appeal to Board of Veterans' Appeals) and afford them the applicable time period for perfecting an appeal to such an issue. (The appellant and her representative are hereby reminded that appellate consideration may be obtained only if a timely appeal is perfected.) If, and only if, the appellant files a timely appeal should the DIC claim be returned to the Board. 2. The AOJ should arrange for an investigation for purposes of gathering additional information as to the appellant's current and past marital status. In this regard, it should determined whether the appellant is currently married or whether she was married to a person other than the veteran at any time prior to his death in December 1989. The investigation should include, but need not be limited to: a. Efforts to ascertain whether jurisdictions in which the appellant lived in Louisiana, Arkansas, or Missouri possess evidence that the appellant is currently married or was at any time married to a person other than the veteran prior to his death in December 1989. If no such evidence is identified, that fact should be noted. If such evidence is identified, a true copy of any original/certified marriage certificate should be procured directly from the custodian, along with a true copy of the associated marriage license and any other documents pertinent thereto. b. Efforts to ascertain from the U.S. Internal Revenue Service whether the appellant, at any time, has filed income tax returns as a married individual and, if so, to whom she reported to be married; and the identity of any children claimed as dependents. (No income or other financial data should be sought.) c. Request a field examination for purposes of further illuminating the facts and circumstances surrounding the appellant's past and current marital status, if necessary. To the extent feasible, this should include contact with family members who may have been aware of the appellant's marital status. All relevant information or evidence obtained in connection with the investigation should be associated with the claims file. 3. Thereafter, the AOJ should take adjudicatory action on the claim for death pension benefits. If the benefit sought remains denied, the appellant and her representative should be furnished with a supplemental statement of the case (SSOC) (to include potentially applicable laws and regulations governing the appellant's claim; in particular, 38 C.F.R. §§ 3.1(j), 3.50, 3.52-3.55 (2007)). The appellant and her representative should then be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until she is notified by the AOJ. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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) (2007).