Citation Nr: 1104606 Decision Date: 02/04/11 Archive Date: 02/14/11 DOCKET NO. 09-17 573 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines THE ISSUE Entitlement to recognition as the Veteran's surviving spouse for purposes of receiving VA death benefits. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran served on active duty from November 1954 to November 1974. He died in April 1982. The appellant seeks entitlement to VA death benefits as his surviving spouse. This case comes to the Board of Veterans' Appeals (Board) on appeal from a July 2008 decision by the RO in Manila, the Republic of the Philippines. A Board hearing was requested and scheduled, but the appellant failed to report for such hearing. The issue of whether new and material evidence has been submitted to reopen a claim for entitlement to VA death benefits has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action, including consideration of 38 C.F.R. § 3.309(e) (as amended August 31, 2010). FINDINGS OF FACT 1. The Veteran was divorced from his first wife, B., in August 1972. 2. The appellant and the Veteran were married in May 1973. 3. The Veteran died in April 1982. 4. The appellant and the Veteran lived together continuously from the time of their marriage until the Veteran's death, and she has not remarried. CONCLUSION OF LAW The criteria for entitlement to recognition as the surviving spouse of the Veteran for the purpose of VA death benefits have been met. 38 U.S.C.A. §§ 101(3), 103 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.1(j), 3.50 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the appellant pre-adjudication notice by letters dated in March and May 2008. In this case, the Board finds that the RO has substantially satisfied the duties to notify and assist. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the appellant in proceeding with this issue given the fully favorable nature of the Board's decision. Recognition as the Surviving Spouse The appellant has applied for VA death benefits, asserting that she is the Veteran's surviving spouse. She maintains that she and the Veteran were married at the time of his death, had a child together, and lived together continuously from the time of their marriage until the Veteran's death. VA law provides for dependency and indemnity compensation (DIC) to a veteran's surviving spouse, child, or parent because of a service-connected death occurring after December 31, 1956. 38 U.S.C.A. § 101(14); 38 C.F.R. § 3.5. Dependency and indemnity compensation may be paid to a surviving spouse of a veteran who died on or after January 1, 1957, and who was married to the veteran (1) before the expiration of 15 years after the termination of the period of service in which the injury of disease causing death was incurred or aggravated, (2) for one year or more prior to the veteran's death, (3) for any period of time if a child was born of the marriage or was born to them before the marriage. 38 C.F.R. § 3.54. A surviving spouse is defined as a person (a) of the opposite sex; (b) who was the spouse of the veteran at the time of the veteran's death; (c) 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 (d) who has not remarried (or engaged in conduct not applicable here). 38 U.S.C.A. § 101(3); see also 38 C.F.R. § 3.50(b). The requirement that there must be continuous cohabitation from the date of marriage to the date of death of the veteran will be considered as having been met when the evidence shows that any separation was due to the misconduct of, or procured by, the veteran without the fault of the surviving spouse. Temporary separations which ordinarily occur, including those caused for the time being through fault of either party, will not break the continuity of the cohabitation. 38 C.F.R. § 3.53(a). A review of the claims file reflects that before the appellant married the Veteran, he was previously married to B. In the July 2008 decision currently on appeal, the RO has determined that the appellant is not entitled to recognition as the surviving spouse of the Veteran because the appellant has never submitted a copy of the Veteran's divorce decree from B., and it is thus unclear as to whether the appellant's subsequent marriage to the Veteran was valid. In the appellant's original DIC claim, dated in May 1982, she reported that the Veteran had been married twice, first to B., from whom he was divorced in 1972, and second to the appellant in May 1973. She stated that he died in April 1982, and that she had not remarried. A marriage certificate is on file, confirming that the appellant and the Veteran were married on May [redacted], 1973. A Death Certificate issued by the State of Iowa shows the appellant as surviving spouse. The record contains a copy of a birth certificate, reflecting that the appellant and the Veteran had a daughter, L., in February 1974. The claims file also contains a June 1982 DIC claim from B., the Veteran's first wife, on behalf of her minor child with the Veteran. B. stated that she married the Veteran in November 1958, and divorced him on August [redacted], 1972 in California. She stated that the Veteran remarried in 1973. She did not claim to be the Veteran's surviving spouse. In the section of the form pertaining to the Veteran's children, she listed four children, including L., born in 1974, and stated that L. lived with the Veteran and his "new wife." B. signed her claim under the following statement: "I CERTIFY THAT the foregoing statements are true and correct to the best of my knowledge and belief." In May 1988, the appellant submitted a photocopy of court records from the state of California dated in August 1977, reflecting modifications in the divorce decree between the Veteran and B. In her March 2008 DIC claim, the appellant stated that she had not remarried since the Veteran's death. During the course of this appeal, she has submitted a duplicate copy of the first page of the August 1977 California court record that was already on file. In a statement received in April 2008, she referred to this document as a divorce decree. By a statement dated in May 2008, she requested a copy of the previously submitted document to enable her to obtain a copy of the final divorce decree. The RO sent her the copy of the 1977 record in May 2008. Despite repeated requests from the RO, the appellant has never submitted a copy of the Veteran's divorce decree from B. Based upon a review of the evidence of record, although a divorce decree is not on file, the Board finds that the Veteran was divorced from B. in 1972, prior to his marriage to the appellant. The Board finds that the June 1982 claim by B., the Veteran's first wife, to be particularly probative on the issue of whether she and the Veteran were divorced in 1972. B.'s statements confirm those of the appellant. Moreover, the 1977 court records from the state of California reflect modification of an existing divorce decree between B. and the Veteran. In sum, the Board finds that the Veteran and the appellant were legally married at the time of his death. The Board also finds that the evidence reflects, and the appellant confirms, that she lived continuously with the Veteran from the date of their marriage until his death. Thus, the appellant meets the legal requirements of 38 C.F.R. § 3.50(b) for recognition as the Veteran's surviving spouse for purposes of receiving VA death benefits for the reasons cited above. However, the issue of entitlement to VA death benefits is not in appellate status, and must be adjudicated by the RO in the first instance. As noted in the Introduction, above, that issue is referred to the RO for appropriate action. When there is an approximate balance of positive and negative evidence about a claim, as in this case, reasonable doubt should be resolved in the claimant's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the Board finds that the appellant is entitled to the status of a surviving spouse for purposes of receiving VA death benefits. ORDER Entitlement to recognition as the Veteran's surviving spouse is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs