Citation Nr: 0912091 Decision Date: 04/01/09 Archive Date: 04/10/09 DOCKET NO. 07-33 187 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether the appellant is eligible for educational benefits pursuant to the Survivors' and Dependents' Educational Assistance Program (DEA) under Chapter 35, Title 38, United States Code. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD V. Chiappetta, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from June 1973 to August 1974. He died in May 2006. The appellant claims to be the Veteran's surviving spouse. This matter comes to the Board of Veterans' Appeals (the Board) on appeal of a November 2006 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which determined that the appellant was ineligible for VA educational assistance benefits as administered under Chapter 35, Title 38, United States Code because she was not the Veteran's surviving spouse. The appellant disagreed with the Muskogee RO's decision and perfected this appeal. The appellant testified at a Travel Board hearing which was chaired by the undersigned Veterans Law Judge in San Antonio, Texas in August 2008. A transcript of the hearing has been associated with the appellant's claims folder. After the August 2008 hearing, the appellant submitted additional evidence directly to the Board, accompanied by a written waiver of consideration of such evidence by the agency of original jurisdiction. See 38 C.F.R. § 20.1304 (2008). During the August 2008 hearing, the appellant requested a copy of the hearing transcript. This was furnished to her under cover letter dated November 26, 2008. FINDINGS OF FACT 1. The Veteran and the appellant were married in May 1985 and divorced in June 1988. They did not cohabit thereafter. 2.. The Veteran died in May 2006. CONCLUSION OF LAW The appellant is not eligible for educational benefits pursuant to the Survivors' and Dependents' Educational Assistance Program under Chapter 35, Title 38, United States Code. 38 U.S.C.A. §§ 101(3), 3500, 3501, 3510; 38 C.F.R. §§ 3.1(j), 3.50, 3.52, 3.807, 21.3020, 21.3021(2) (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant seeks recognition as the Veteran's surviving spouse for the purpose of obtaining DEA benefits. In the interest of clarity, the Board will first discuss certain preliminary matters. The issue on appeal will then be analyzed and a decision rendered. The Veterans Claims Assistance Act of 2000 (VCAA) The Board has considered VA's duty to inform the appellant of the evidence needed to substantiate her claim and to assist her in obtaining the relevant evidence, as required under the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (2000) [codified at 38 U.S.C.A. §§ 5103, 5103A (West 2002)]; 38 C.F.R. § 3.159 (2008). The VCAA is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment but not yet final as of that date. The Board must make a determination as to the applicability of the VCAA to a particular claim. Holliday v. Principi, 14 Vet. App. 280, 282-83 (2001). The Board initially observes that it appears that the provisions of the VCAA are not applicable in cases, such as this, in which the sole issue is entitlement to VA education assistance benefits under 38 U.S.C. Chapter 35 because such is not a claim for a benefit as contemplated by 38 U.S.C. §§ 5100 et seq. Cf. Barger v. Principi, 16 Vet. App. 132, 138 (2002). Moreover, the United States Court of Appeals for Veterans Claims (the Court) held that the VCAA has no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter. See Manning v. Principi, 16 Vet. App. 534 (2002), citing Livesay v. Principi, 15 Vet. App. 165 (2001). The Board finds that such is the case as to the issue here on appeal. As explained below, the issue to be decided is whether the appellant is eligible for education assistance benefits under Chapter 35, Title 38, United States Code. There are presently no pertinent facts in dispute, and as such, application of relevant provisions of the law and regulations governing eligibility [in particular, "surviving spouse" status] to the facts of this case will determine the outcome. No amount of additional evidentiary development would change the outcome of this case; therefore no notice is necessary. Thus, based on the Court's decision in Manning, the Board concludes that the provisions of the VCAA are not applicable to this particular matter. See also Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Mason v. Principi, 16 Vet. App. 129, 132 (2002) [VCAA not applicable "because the law as mandated by statute and not the evidence is dispositive of the claim"]. It is clear that no amount of additional development will have any possible impact on this case. See Wensch v. Principi, 15 Vet. App. 362 (2001). The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2008). The appellant has been accorded the opportunity to present evidence and argument in support of her claim, and as described above she testified before the undersigned Veterans Law Judge in August 2008. Accordingly, the Board will proceed to a decision. Relevant law and regulations DEA DEA allowance under Chapter 35, Title 38, United States Code may be paid to a child or surviving spouse of a veteran who meets certain basic eligibility requirements. 38 U.S.C.A. §§ 3500 and 3501 (West 2002); 38 C.F.R. § 3.807 (2008). Marriage The term "marriage" for VA purposes means a marriage valid under "the law of the place where the parties resided at the time of the marriage, or the law of the place where the parties resided when the rights to benefits accrued." 38 U.S.C.A. § 103(c) (West 2002); 38 C.F.R. § 3.1(j) (2008). The term "spouse" means a person of the opposite sex who is a wife or husband. See 38 U.S.C.A. § 101(31) (West 2002). The term "wife" means a person whose marriage to the veteran meets the requirements of 38 C.F.R. § 3.1(j) and 38 C.F.R. § 3.50(a) (2008). Additionally, 38 U.S.C.A. § 101(3) (West 2002) states that the term "surviving spouse" means a person 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 who has not remarried or (in cases not involving remarriage) has not since the death of the veteran lived with another person and held himself or herself out openly to the public to be the spouse of such other person. See also 38 C.F.R. § 3.53 (2008). Factual background The facts in this case are not in dispute. The Veteran and appellant were married in May 1985 in Texas. See the May 1985 Marriage Certificate. An Agreed Decree of Divorce signed on June [redacted], 1988 exists of record stating that both the Veteran and the appellant are "divorced and that the marriage between them is dissolved." See the June [redacted], 1988 Agreed Decree of Divorce, page 1. [The June 1988 Decree of Divorce was signed by the presiding judge, the appellant and her attorney, and the Veteran's attorney. It appears that the Decree was not signed by the Veteran himself. See the June [redacted], 1988 Agreed Decree of Divorce, page 5.] Neither the Veteran nor the appellant remarried. The appellant filed her claim for DEA benefits in September 2006, four months after the death of the Veteran. As noted above, the RO determined that the appellant was ineligible for DEA benefits because she and the Veteran were divorced in 1988, and therefore she was not the Veteran's surviving spouse for the purposes of receiving VA benefits. See the November 2006 RO decision. Analysis The appellant argues that she is eligible for DEA benefits as the Veteran's surviving spouse. In essence, the appellant argues that because the Veteran did not sign the June 1988 Decree of Divorce, the two were still legally married at the time of the Veteran's death in 2006. See the appellant's March 2007 notice of disagreement; see also the appellant's October 2007 substantive appeal (VA Form 9). For the reasons and bases described immediately below, the Board finds that the appellant is not the Veteran's surviving spouse, and that the June 1988 Decree of Divorce dissolved their marriage despite the absence of the Veteran's signature. Initially, as noted above, "marriage" for VA purposes means a marriage valid under "the law of the place where the parties resided at the time of the marriage, or the law of the place where the parties resided when the rights to benefits accrued." 38 U.S.C.A. § 103(c) (West 2002); 38 C.F.R. § 3.1(j) (2008). The evidence of record indicates that the Veteran and the appellant were married in Texas, and both resided at separate addresses in Texas at the time of the Veteran's death. Further, their 1988 divorce proceedings took place in a Texas district court. See the June 1988 Decree of Divorce. Accordingly, the Board will look to Texas state law in determining whether the absence of one party's signature to a divorce decree invalidates the decree and perpetuates the marriage. Under Rule 11 of the Texas Rules of Civil Procedure, unless otherwise provided, "no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record. [Emphasis added by the Board.] Tex. R. Civ. Pro. 11. In a 2003 case before the First Court of Appeals of Texas, a former husband and wife disputed the contractual enforceability of their divorce decree based on the fact that neither party signed the decree. See Rich v. Rich, 2003 WL 21027940 (Tex. App. - Hous. (1st Dist)). However, pursuant to their settlement agreement, a trial court issued the divorce decree. The terms of the decree were made in open court and written into the record. The appeals court determined that under the second part of Rule 11 italicized above, an enforceable contract [i.e. a valid and enforceable divorce decree] existed between the parties. More specifically, the Texas appeals court stated that "Rule 11 equates a written divorce agreement with the "open court and entered of record" portion of the rule . . . When the court reporter transcribed the decree, this act memorialized the agreement and gave it the same legal effect as a written agreement signed by the parties." [Citing McLendon v. McLendon, 847 S.W.2d 601, 608 (Tex. App. -Dallas 1993, writ denied)]. Further, the appeals court highlighted language in the divorce decree that "makes it clear that it represents the agreement of the parties," and noted that because the decree incorporated the terms of the agreement, it is a "consent judgment; thus it is enforceable both as a contract and as a judgment." [Citing McGuire v. McGuire, 4 S.W.3d 382, 386 (Tex. App. - Houston 1999, no pet.)]. Accordingly, in Rich, though neither spouse signed the divorce decree, the Texas Court determined that the decree represented a valid and enforceable contract because the parties' consent to the decree was explicit in the terms of the Settlement agreement, and decree's terms were made in open court and entered into the record. The instant case before the Board has similar facts. Just as the party challenging the divorce decree in Rich argued against its enforceability based on the technical fault of the parties to actually sign it, so too does the appellant. Notably, the appellant does not argue that the divorce decree does not fairly and fully represent her and Veteran's agreement. As in Rich, the appellant and Veteran appeared at a hearing before the 288th Judicial District Court in Bexar County, Texas on December 21, 1987, where the Decree of Divorce was entered into the record. See the June 1988 Agreed Decree of Divorce, page 1. [The Board notes that the appellant testified in August 2008 that she could not recall appearing at a hearing, but the actual Decree clearly shows that a hearing was held.] The Decree notes that both the appellant and the Veteran appeared with representation, and that "[a] record of testimony was duly recorded." Crucially, after the Texas District Court determined it had jurisdiction in the matter, it specifically noted that "[t]he parties have consented to the terms of this Decree and stipulated it is a contract." The Decree was then formally entered into the record, and signed by the presiding Judge in June 1988. By its own terms, the Agreed Decree of Divorce is a consent judgment which, as outlined in Rich above, is enforceable as both a contract and as a judgment. See Rich, supra, citing McGuire. Because the appellant's and the Veteran's consent to the terms of the Decree were acknowledged and recorded in open court, and such terms were transcribed into the record and signed by the presiding judge, under Rule 11 and Rich, the agreement was "memorialized" and granted "the same legal effect as a written agreement signed by the parties." See Rich, supra at 2. Accordingly, the lack of the Veteran's signature on the Agreed Decree of Divorce is of no legal consequence. Texas law recognizes the Decree as a valid and enforceable contract based on both the Veteran's and appellant's stipulations of consent to the Decree in open court, and the subsequent incorporation of the terms of the Decree into the legal record. Moreover, Texas case law provides that acceptance of benefits under a divorce decree "ratifies the agreement by . . . conduct." See Rich, supra at 2 [citing Dehnert v. Dehnert, 705 S.W.2d 849, 851 (Tex. App. - Beaumont 1986, no writ) (holding that because husband took advantage of settlement agreement in divorce proceeding by receiving property, he should not be able to renounce) and K.B. v. N.B., 811 S.W.2d 634, 638 (Tex. App. - San Antonio 1991, writ denied) (noting that a party's conduct estopped him from rejecting terms of divorce decree)]. While the Board recognizes that the Veteran was the Petitioner in the divorce proceedings, the terms of the Decree entitled the appellant to certain property and child support payments. See the June 1988 Agreed Decree of Divorce, pages 3 and 4. The record is silent as to any instance during the time from the divorce in 1988 to the time of the Veteran's death in 2006 when the appellant did not accept any benefit afforded her by the Decree. Additionally, there is no evidence of record that illustrates an intent by the appellant or the Veteran to be married after the June 1988 divorce proceedings. The record includes an October 2008 letter from the appellant's and Veteran's daughter which indicates that she never heard the Veteran state he was divorced, and that the Veteran introduced her and the appellant as "family" to his friends. The Board does not doubt the veracity of this statement; nevertheless, the statement fails to establish an affirmative "holding out" to others that the appellant and the Veteran were in fact married, and also does not contradict the terms of the divorce as identified by the 1988 Decree. Pertinently, the Veteran's death certificate specifically indicates that he was divorced at the time of his death, and at no time prior does the record show that the Veteran and the appellant made any statements to the contrary. See the Veteran's May 2006 Death Certificate. In any event, even if the Board were to concede that the Decree was somehow invalid, which it manifestly does not, the appellant still may not be considered the Veteran's "surviving spouse" for VA purposes. See Luallen v. Brown, 8 Vet. App. 92, 95-6 (1995), citing Holbrook v. Brown, 8 Vet. App. 91, 92 (1995) [the Board has the fundamental authority to decide in the alternative]. Pertinently, the appellant testified that she and the Veteran had not lived together since the divorce in 1988. See the August 2008 hearing transcript, page 10. By definition, as noted above, a "surviving spouse" for VA purposes must have 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). See 38 U.S.C.A. § 101(3). No evidence of record demonstrates separation due to misconduct, or procurement of separation by the Veteran without fault of the appellant. Therefore, even conceding an invalid divorce decree, the appellant still could not be considered the Veteran's "surviving spouse" for VA purposes because she and the Veteran did not cohabitate during the approximately 18 years prior to the Veteran's death. In sum, the appellant and the Veteran were divorced at the time of the Veteran's death. For this reason, the appellant has no legal entitlement to recognition as the Veteran's surviving spouse for VA purposes, to include eligibility for educational benefits under the DEA. As noted above, the Court of Appeals for Veterans Claims has held that in a case where the law, as opposed to the facts, is dispositive of the claim, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Consequently, the appellant's appeal must be denied as a matter of law. ORDER Eligibility for educational benefits pursuant to the Survivors' and Dependents' Educational Assistance Program (DEA) under Chapter 35, Title 38, United States Code is not established. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs