Citation Nr: 0814020 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 05-21 635A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Whether new and material evidence has been submitted to reopen the appellant's claim to be recognized as the surviving spouse of the veteran for purposes of entitlement to Department of Veterans Affairs (VA) benefits. REPRESENTATION Appellant represented by: Charles A. Johnson, Attorney- at-Law WITNESSES AT HEARING ON APPEAL Appellant and Appellant's Daughter ATTORNEY FOR THE BOARD L.J. Bakke, Counsel INTRODUCTION The veteran served on active duty from January 1940 to July 1945. The veteran died in September 1975. The appellant seeks to be recognized as his surviving spouse. This appeal arises before the Board of Veterans' Appeals (Board) from a letter denial rendered in August 2004 by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, VA in which the appellant's claim to be recognized as the surviving spouse of the veteran was denied. This case was previously denied in a letter decision rendered by the RO in June 1995. The RO appears to have denied the claim based on a de novo review in August 2004. Notwithstanding, because there was a previous denial, the Board must determine that new and material evidence was presented to reopen the claim before considering the claim on the same basis, making RO determination in that regard irrelevant. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The issues is thus as characterized on the first page of this decision. FINDINGS OF FACT 1. In an June 1995 rating decision, the RO declined to recognize the appellant as the surviving spouse of the veteran for purposes of entitlement to VA benefits. The appellant did not appeal this decision and it became final. 2. The additional evidence received since the June 1995 rating decision is new but not material in that it does not bear directly and substantially upon the specific matter under consideration-i.e., the appellant has offered no evidence that she was not at fault in the continuous separation between her and the veteran that existed from their separation in 1968 to his death in 1975-and thus it cannot be so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSIONS OF LAW 1. The unappealed June 995 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2007); 38 C.F.R. § 20.302(a) (2007). 2. Evidence received since the June 1995 decision is not new and material, and the criteria to reopen the previously denied claim for recognition as a surviving spouse for the purposes of entitlement to VA benefits are not met. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2007); 38 C.F.R. § 3.156(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In June 1995, the RO essentially declined to reopen the previously denied claim to be recognized as the veteran's surviving spouse. The appellant had petitioned to reopen her claim following a decision by Social Security Administration (SSA) to recognize her as the veteran's spouse for purposes of SSA benefits. The June 1995 rating decision was based in part on findings made in a September 191 Board decision, which concluded the appellant was at fault in the continuation of her separation from the veteran, and that she had no interest in resuming a marital relationship with the veteran. The evidence then of record established that the veteran and appellant had married in July 1949 and had separated in 1968. The appellant filed for divorce and was granted a restraining order. The veteran was served, but the case was later dismissed because the appellant failed to pursue it. In 1973, she remarried and remained married to her second husband until well after the veteran's death in 1975. In 1990, her second marriage was deemed to be void ab initio. Notwithstanding the circumstances of the separation from the veteran or the invalidity of her second marriage, the Board observed that the appellant had not expressed any interest in resuming a marital relationship with the veteran, and that she had clearly abandoned her marital relationship with him. It could therefore not be established that she was without fault in their separation. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. The regulations define "new" evidence as existing evidence not previously submitted to agency decisionmakers. "Material" evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Evidence submitted since the June 1995 denial includes court documents dated in 1952 and 1968 concerning, respectively, a suit filed by the appellant against the veteran (disposition unknown) and a restraining order granted in favor of the appellant against the veteran, and a 1997 statement from the veteran's sister attesting that the veteran deceived his family as well as the appellant into believing that he was actually divorced from the appellant. The appellant has also offered numerous statements and her testimony before the undersigned Veterans Law Judge in February 2008. In pertinent part, her testimony and statements are that she believed she and the veteran were fully divorced when she married her second husband, and she was not aware that she had not been legally divorced until well after the veteran's death. She petitioned the Board to consider the veteran's fault in his violence to and abandonment of her and their children, and his deceit. The court document dated in 1952 was previously of record and already been considered in the June 1995 rating decision. It is therefore not new. The remainder of the evidence submitted, while new, is not material. In essence, it is duplicative of that evidence offered and considered in the previous, June 1995, rating decision and the previous, September 1991, Board decision- i.e., that the veteran tricked the appellant into believing she and the veteran were divorced and that she married her second husband only when she became aware the veteran had remarried. The evidence proffered, including her statements and testimony, simply do not establish that she, in fact, re- established the marital relationship with the veteran or intended to do so. Rather, the record demonstrates that she filed for divorce from the veteran, and her statements and testimony reflect that she clearly abandoned her marital relationship with the veteran and did not intend to resume it. VA is bound by the laws and regulations governing it. The law and regulations as they apply herein dictate that to be recognized as the veteran's surviving spouse for the purpose of establishing entitlement to VA benefits, the appellant must be a person of the opposite sex who was the spouse of a veteran at the time of the veteran's death, and 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 the fault of the spouse) and has not remarried. 38 U.S.C.A. § 101(3); 38 C.F.R. § 3.50(b)(1). The circumstances of her initial separation and divorce from the veteran notwithstanding, the appellant married another man in 1973 and remained married to him until long after the veteran's death. It is understood that her marriage to her second husband was proclaimed void ab initio in 1990. Nevertheless, the appellant has stated and testified that, for all intents and purposes, she freely and, she believed, legally entered into marriage with her second husband and remained married to him at the time of the veteran's death in 1975. The record concurs. There is no evidence in any statements, documentation, or her testimony before the Board that she professed or exhibited any intention to re-establish marital ties with the veteran before his death. The Board is sympathetic to the appellant's claims but notes that it cannot provide the remedy she seeks. The appellant, therefore, is found to have been at fault in the continuous separation between the appellant and the veteran from their separation in 1968 to the veteran's death in 1975 within the laws and regulations of the VA. In this case, VCAA notice is not required because the issue presented involves a claim that cannot be substantiated as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); VAOPGCPREC 5-2004 (June 23, 2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). ORDER New and material evidence has not been presented to reopen the appellant's claim to be recognized as the surviving spouse of the veteran for purposes of entitlement to VA benefits. The claim is denied. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs