Citation Nr: 1104745	
Decision Date: 02/07/11    Archive Date: 02/14/11

DOCKET NO.  07-20 190	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, 
Arizona


THE ISSUE

Recognition as a surviving spouse.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

E. I. Velez, Counsel





INTRODUCTION

The Veteran had active service from November 1953 to February 
1974.  The appellant alleges that she is the Veteran's surviving 
spouse.

This matter came before the Board of Veterans' Appeals (Board) on 
appeal from a February 2006 decision of the Department of 
Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. 

The appeal is REMANDED to the RO via the Appeals Management 
Center (AMC), in Washington, DC.  VA will notify the appellant if 
further action is required.


REMAND

The appellant seeks to be recognized as the Veteran's surviving 
spouse for purposes of entitlement to death benefits.  She argues 
that while she had divorced the appellant prior to his death, 
that they continued to cohabitate in a continuous or nearly 
continuous basis after the marriage and that the separation was 
not her fault.  

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) (2010) 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 (2010).  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 copy of a state of Nevada Marriage Certificate shows the 
appellant and the Veteran were married in September 1993.  A 
Report of Contact of March 2004, states that the Veteran had 
called the RO to inform them he had received his finalized 
divorce decree on March [redacted], 2004 and would like VA to adjust his 
benefits immediately by removing the appellant from his benefit.  
A divorce decree has not been associated with the claim file.  
However, the appellant has stated in numerous documents and 
statements, that she divorced the Veteran in March 2004.  

A death certificate shows the Veteran died in November 2005.  The 
certificate notes he was divorced at the time of his death.  

The appellant filed a formal claim for Dependency and Indemnity 
Compensation (DIC) benefits in January 2006 when she submitted a 
VA Form 21-534.  In the VA Form 21-534, under the question 
whether she lived continuously with the Veteran from the date of 
the marriage to the date of his death, the Board notes that she 
answered both yes and no.  In a note explaining her "yes" 
answer, she noted that the Veteran sued for divorce in June 2003, 
he came back to her in December 2004 then left in September 2005 
and died in November 2005.  In the "Remarks" section of the 
form, she stated that they had married in September 1993 and 
divorced in March 2004; that the Veteran remained living with her 
at the residence and the appellant was his caregiver until 
September 2005; and, that the Veteran moved out because he was 
not willing to remarry the appellant.


Finally, the Board notes that the appellant has not been provided 
with the proper Veteran Claim Assistance Act (VCAA) notice.  
Significantly, RO notations in the claim file reflect the RO had 
determined that there was a deficiency in the case as VCAA notice 
had not been provided and noted said notice should be provided.  
The RO in turn provided notice to the appellant regarding 
development after the filing of a Notice of Disagreement.  
However, VCAA compliant notice was not provided.  On remand, VCAA 
notice should be provided. 

Accordingly, the case is REMANDED for the following action:

1.  The AOJ should provide the appellant with 
VCAA notice including notice of what is 
necessary to establish surviving spouse 
status.

2.  The AOJ should attempt to obtain a copy 
of the divorce decree from either the 
appellant or an official source.

If upon completion of the above action any benefit sought remains 
denied, the case should be returned to the Board after compliance 
with requisite appellate procedures.  The appellant has the right 
to submit additional evidence and argument on the matter or 
matters the Board has remanded.  Kutscherousky v. West, 12 Vet. 
App. 369 (1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals 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. 2009).



_________________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the 
Board of Veterans' Appeals 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) (2010).