Citation Nr: 1122198 Decision Date: 06/08/11 Archive Date: 06/20/11 DOCKET NO. 10-39 052 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to dependency and indemnity compensation (DIC) benefits, to include whether the appellant is the Veteran's surviving spouse. REPRESENTATION Appellant Represented by: The American Legion ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from January 1951 to March 1952. He served honorably and bravely in the Korean War, where he lost his right foot stepping on an enemy land mine. The Veteran passed away on September [redacted], 2007, in Ireland. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, as well as an August 2010 administrative decision issued by the Pittsburgh, Pennsylvania RO. At first glance, the July 2008 rating decision appears to award entitlement to DIC compensation under 38 U.S.C.A. § 1318. However, the accompanying notice letter indicates that the claims for DIC and death pension were denied because evidence showed that the appellant and the Veteran were divorced. The August 2010 Administrative Decision held that the appellant was not the surviving spouse of the Veteran for VA purposes. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran and the appellant were married in 1966 in Ireland, under Irish law. 2. The September 1975 marriage dispensation (church annulment) by the Catholic Church does not have any legal effect under the civil law of Ireland and therefore does not affect the lawfulness of the 1966 marriage. 3. The June 1993 default divorce judgment procured by the Veteran from the Superior Court of California was set aside by a motion from that Court in March 1994 for lack of service of process and personal jurisdiction over the appellant. 4. The evidence does not show that the Veteran filed another divorce action in the United States at any time or in Ireland after 1995 when such actions were became legal there. 5. The appellant was the lawful spouse of the Veteran at the time of his death. 6. At the time of this decision, the appellant has not remarried. 7. The preponderance of the evidence demonstrates that the appellant procured a marriage dispensation (church annulment) of her marriage in September 1975, essentially communicating a definite intent to end the marriage. 8. Other actions, including moving back in with her parents and using her maiden name, further demonstrate that definite intent by the appellant to end the marriage. CONCLUSION OF LAW The criteria establishing recognition of the appellant as surviving spouse, and as a proper claimant for DIC benefits, have not been met. 38 U.S.C.A. §§ 101, 1102, 1304, 1541 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.50, 3.53, 3.54 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). The Board acknowledges that no VCAA notice was provided the appellant in this case after receipt of her claim for death benefits in June 2008. The U.S. Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the appellant has not alleged any prejudicial or harmful error in VCAA notice. Moreover, the record reflects that the Veteran has been provided with a copy of the July 2008 rating decision, August 2010 administrative decision, the August 2010 statement of the case (SOC), and the November 2010 supplemental statement of the case (SSOC), which included a discussion of the facts of the claim, pertinent laws and regulations, notification of the basis of the decision, and a summary of the evidence considered to reach the decision. Thus, the appellant was made aware of the evidence she needed to provide to substantiate her claim. Finally, the Board notes that in a September 2010 statement the appellant declined to have a hearing before the Board. Additionally, the appellant was given a full and fair opportunity to participate fully in the adjudication of her case, and in fact has sought legal counsel-though such cannot legally be her representative before the Board in this matter as such representative is not certified by VA as required by law. The appellant was informed of her right to seek representation with authorized representatives in an April 2011 letter, though she has still not responded to such letter at the time of this decision. Accordingly, in light of its decision to deny eligibility for death benefits based on non-recognition as a surviving spouse and conceding that VA failed to adequately notify the appellant in this case, the Board finds that such a failure to provide such notice in this case was harmless error and it can proceed to adjudication of the merits of this case despite the failure to provide adequate notice in this case. See Sanders, supra. VA also has a duty to assist the appellant in the development of the claim. This duty includes assisting her in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, the appellant's statements in support of the claim are of record, as are various legal documents relating to the annulment of her marriage and the Veteran's later attempt to effectuate a divorce in the United States. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Background The Veteran served in the United States Army as a first aid attendant during the Korean War from January 1951 to March 1952, when he was honorably medically discharged following the amputation of his right foot after the Veteran stepped on an enemy land mine. In April 1952, he was awarded service connection for amputation of his right leg below the knee, hepatitis, and shell fragment wounds of the left lower extremity and left forearm; his combined rating at that time was 70 percent disabling and he was additionally awarded special monthly compensation for the loss of his right foot. He was awarded a total disability rating based on individual unemployability due to his service-connected disabilities (TDIU) in November 1965. In April 1966, the Veteran was married to the appellant in Ireland. At that time he provided a copy of his Irish marriage license to VA. In February 1976, the Veteran submitted a statement to the Embassy in Ireland noting that he had a church annulment of his marriage. The Embassy noted that to the best of its knowledge a church annulment does not dissolve a marriage in Ireland and that such an annulment is not recognized by the state. The Board further takes judicial notice that Ireland did not recognize any type of divorce until 1995. In January 1977, the Veteran filed a statement notifying VA that his marriage had been annulled and that he wished to have the appellant discontinued as his dependent. With that statement, the Veteran filed the Marriage Dispensation (hereinafter referred to as "dispensation" or "church annulment"), dated September 1975, from the Vatican, annulling the Veteran and the appellant's 1966 marriage. Such dispensation specifically stated that the appellant was forbidden from contracting for another marriage without consultation with the Congregation of the Sacraments in Rome, Italy. It is unclear from the record whether the severance of the appellant as a dependant was ever effectuated. In November 1980, the appellant filed a claim for apportionment of the Veteran's VA benefits. In that statement, the appellant's attorneys stated that the appellant obtained a church annulment of the marriage in September 1975. It was noted that the Veteran had not provided for the support of his wife for the past 12 years and that she wished to petition for a formal apportionment of the Veteran's compensation benefits. The appellant submitted a May 1981 statement indicating that despite having a Roman Catholic Church annulment, they were still legally married. Another May 1981 statement from the appellant indicated that the Veteran and the appellant were living apart at that time. In July 1981, VA produced a memorandum addressing the legality of the dispensation with regard to the Veteran and appellant's marriage. That document noted that the Veteran and appellant had married in Ireland in February 1966, at which time both parties were legal residents of Ireland. Some time prior to November 1975, the appellant and Veteran separated. The memorandum noted that the Veteran received an ecclesiastical "Dispensationis Matrimonii" dated September 1975. It noted that the effect of the dispensation was to render the marriage void ab initio, i.e., as though the marriage had never occurred, as far as the Roman Catholic Church was concerned. However, the effect of such document was limited to the Church. It further noted that under the civil law, the Veteran and appellant were still married and such was not legally dissolved "since a so-called church annulment is not recognized by the state." On the basis of that memorandum finding that the marriage was valid under Irish law, VA sent the Veteran a letter in July 1981 informing him of the appellant's claim for an apportionment. The Veteran replied to that letter in August 1981, stating that he thought an apportionment would be an injustice and a financial hardship to him. He further stated that the appellant "was living with another man, and ha[d] never loved [him;] just was after [his] money since it [was] hard times in Ireland, and when she left [, he] would not give her all the money she asked for as we had to buy food and all the necessities of life." (Emphasis added). As indicated in a September 1981 Report of Contact, the Washington D.C. RO advised the Veteran to obtain an attorney and get a divorce, in light of his statements that his wife was living with another man and that he had not resided with her for more than 10 years. In an August 1981 statement, the appellant reported that she was still separated from the Veteran and that she did not intend to take any legal action to end the marriage, as there was no such thing as divorce in Ireland. She stated that the Veteran did not provide her any money, that he has not supported her for 12 years, and that they had no children. She stated that she was living with her parents. The request for an apportionment was denied in October 1981 as the appellant did not meet the requirements for a spouse of the Veteran for VA purposes. She did not appeal that decision. In June 1993, the Veteran submitted a default judgment from the Superior Court of California granting him a divorce from the appellant. Such order specifically designated that the Veteran's VA compensation benefits were his sole and separate property prior to the marriage. A December 1993 statement from the Veteran indicated that he was living and residing in California and that he only visited Ireland yearly. The Board notes that it is unclear whether the Veteran had moved back to Ireland, or was merely visiting there, at the time of his death. In June 2008, the appellant applied for VA death and indemnity compensation (DIC) benefits. At that time she stated that she and the Veteran were separated but still legally married, and that they had a church annulment by the Vatican in Rome. She stated that such annulment did not affect the legal standing of their marriage under the civil law in Ireland and that she was still the legal wife under Irish law. With her claim she submitted the Veteran's death certificate which noted that the Veteran died on September [redacted], 2007 from cardiac arrest. It also noted that the Veteran was married at the time of his death. She also submitted another copy of the dispensation as well as a statement from her "representative" which indicated that she was still married under Irish law because the church annulment did not have any effect on the validity of the marriage under Irish law. The appellant was denied DIC benefits as notified in a July 2008 letter because the evidence of record at that time demonstrated she and the Veteran had been divorced in 1993. Subsequent statements from the appellant and her unofficial representative argued again that the church annulment did not amount to a divorce under Irish law. Additionally, the unofficial representative submitted a March 2009 letter which indicated that his inquiries into whether an application for divorce or legal separation in Ireland had ever been made confirmed that no such application had ever been made. In November 2009, a friend of the appellant submitted a statement noting that the Veteran and the appellant had never been divorced under Irish law. He noted that the death certificate showed the Veteran was married and that no record of any divorce or legal separation was shown by the "representative's" inquiry, noted above. The friend stated that he had known the appellant since birth and that he attended grade school with the Veteran. The appellant's friend noted he became an American citizen in the 1950s. He further stated that the appellant was locally known by her maiden name, as was custom, and that she was currently receiving social security benefits. In response, the Pittsburgh RO issued an administrative decision in August 2010 again denying benefits to the appellant on the basis that she was divorced from the Veteran in 1993. They also sent the appellant a statement of the case at that time. The appellant responded to the statement of the case by providing a substantive appeal, VA Form 9, which stated that the Veteran was granted a divorce in California in 1993 but that such was overturned by a March 1994 order. She further stated that the dispensation of record does not affect the legal status of her marriage under Irish law. She also stated that she was unaware of whether the Veteran ever reinstituted another legal proceeding in California prior to his death. With her substantive appeal, the appellant provided the March 1994 order from the Superior Court of California setting aside the March 1993 default divorce order for lack of service of process and lack of personal jurisdiction over the appellant. In short, the appellant argues that she was the legal wife of the Veteran at the time of his death, as the dispensation received in 1975 has no legal effect on the Veteran and appellant's marriage under Irish law. Moreover, she asserts that the 1993 divorce does not have any legal effect because it was set aside in March 1994 for lack of service of process and personal jurisdiction. She thus avers that she is the surviving spouse of the Veteran, entitling her to DIC benefits. Analysis The Board has reviewed all of the evidence in the Veteran's claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). VA death benefits may be paid to a surviving spouse who was married to the Veteran: (1) one year or more prior to the Veteran's death or (2) for any period of time, if a child was born of the marriage, or was born to them before the marriage. 38 U.S.C.A. §§ 1102, 1304, 1541 (West 2002 & Supp. 2010); 38 C.F.R. § 3.54 (2010). One claiming to be the spouse of a veteran has the burden to come forward with a preponderance of evidence of a valid marriage under the laws of the appropriate jurisdiction. See Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). The term "surviving spouse" is defined as a person of the opposite sex who (1) was the lawful spouse of a veteran at the time of the Veteran's death, and (2) 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 (3) who has not remarried. 38 U.S.C.A. § 101(3); 38 C.F.R. § 3.50(b)(1); see Gregory v. Brown, 5 Vet. App. 108 (1993). Further, she must not have lived with another person of the opposite sex and held herself out openly to the public to be the spouse of such other person. 38 C.F.R. § 3.50(b)(2). In this case, the Board concedes both that the Veteran was the lawful wife at the Veteran's death and that she has not remarried. The Veteran and the appellant were married in 1966 under Irish law. While the Catholic Church issued a 1975 dispensation annulling the marriage in the eyes of the Vatican, all of the legal authority of record, including a VA legal memorandum dated in July 1981, demonstrates that such a dispensation has no effect on the legality of the marriage under Irish civil law. Therefore, the Board finds that the dispensation does not nullify the 1966 marriage. Moreover, while the Board acknowledges that the Veteran did procure a default divorce from the appellant in a June 1993 judgment from the Superior Court of California, such default divorce judgment was set aside by the March 1994 motion due to lack of service of process and personal jurisdiction over the appellant. That March 1994 order renders the June 1993 divorce null; therefore, the 1966 marriage has not been dissolved by the June 1993 divorce in this case. The facts of record do not demonstrate that the Veteran ever reinitiated a divorce action in the United States at any other time, or in Ireland after such became a legal option in 1995. Thus, the Board finds that the 1966 marriage was still valid at the time of the Veteran's death, under Irish law, and that the appellant was the lawful spouse of the Veteran at the time of his death. No facts of record demonstrate that since the Veteran's death the appellant has remarried. Consequently, this case turns on the issue of whether continuous cohabitation was broken and a desertion of the Veteran was effected by the appellant. The Board finds that such was broken, that the appellant deserted the Veteran. Therefore, she cannot be considered the surviving spouse under 38 C.F.R. § 3.50. 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 fault of the surviving spouse. Temporary separations which 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) (2010). In determining whether there was continuous cohabitation, the statements of the surviving spouse as to the reason for the separation will be accepted in the absence of contradictory information. If the evidence establishes that the separation was either procured by the Veteran, or was by mutual consent and that the parties lived apart for purposes of convenience, health, business, or any other reason that did not show an intent on the part of the surviving spouse to desert the Veteran, the continuity of the cohabitation will not be considered as having been broken. See 38 C.F.R. § 3.53(b); see also, Alpough v. Nicholson, 490 F.3d 1352 (Fed. Cir. 2007). State laws will not control in determining questions of desertion; however, due weight will be given to findings of fact in court decisions made during the life of the Veteran on issues subsequently involved in the application of this section. 38 C.F.R. § 3.53(b). Consequently, the Federal Circuit has stated that "a separation by mutual consent does not constitute desertion unless the separation resulted from misconduct or communication of a definite intent to end the marriage by the surviving spouse." See Alpough, supra. In cases of marital separation by mutual consent, in which the Veteran's spouse did not induce the separation by communicating a definite intent to end the marriage, "the statutory continuous cohabitation requirement is excused in the absence of a formal divorce, regardless of how long it has been since there was contact or a meaningful relationship between the Veteran and the surviving spouse." See Alpough v. Peake, Slip Opinion, 2008 WL 372826, *2 (Vet. App.) (2008). In this case, the preponderance of the evidence demonstrates that the appellant procured the dispensation in 1975. In her correspondence to VA in November 1980, the appellant-through her attorneys at that time-stated that she obtained the marriage dispensation. Also, the Board notes that the dispensation appears to corroborate this fact in that the appellant, and only the appellant, must go back before the Vatican if she ever wished to contract for a second marriage. The Board finds that the lack of such a "punishment" for the Veteran is particularly telling in this case as to whom the moving party for the dispensation was. Logic would dictate that if the Veteran and the appellant mutually asked for a dispensation, the Vatican would have treated both parties equally as to the "punishment" meted out. Curiously absent from the entire 1975 dispensation document is any mention of the Veteran except to identify him as a party to marriage. Moreover, while the Veteran's correspondences note that he submitted the marriage dispensation in 1977, the Veteran never stated in those correspondences that he and he alone, procured the marriage dispensation. Instead, he just stated that his marriage had been annulled and that he wished to have the appellant taken off his award as a dependent. He also stated in 1981 that the appellant was living with another man, had never loved him, and "just wanted his money" because "when she left him" he did not give her all the money that she had asked for and it was "hard times in Ireland." In fact, the 1981 VA Memorandum merely indicated that the Veteran "received" a Dispensationis Matrimonii, but this does not indicate that such dispensation was prompted by his actions alone. Again, it was the appellant, and not the Veteran, who was required to go back before the church before she could enter a second marriage, strongly suggesting that she was the initiating party. Conversely, the 1981 correspondences from the appellant refer to the fact that "we"-meaning she and the Veteran-obtained a marriage dispensation. Given that the Board must take the statements, absent contradictory statements, of the surviving spouse as to the reason for the separation, it appears to the Board that such statements of "mutual consent" to separate in this case are contradictory to her prior affirmations that she sought and secured the marriage dispensation in 1975. The Board is cognizant that contemporaneous evidence has more probative value than history as provided by the appellant. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous medical evidence has more probative value than medical history as provided by the Veteran). Thus, in this case, the Board places a higher probative value on the earlier statements made by the appellant as to who effectuated the dispensation request. Moreover, at that time, the appellant was represented by attorneys, who are generally individuals trained to accurately and persuasively account the facts of the case in any advocacy statement on behalf of their client. Furthermore, the Board notes that the November 1980 statement that she obtained the dispensation and the 1981 correspondences noting that "we" obtained a dispensation are not necessarily contradictory in nature, but rather can be read as congruent with each other. In her 1981 statements, the appellant is not recounting how the marriage dispensation was achieved, but merely that one had been given. There are two parties to a marriage contract and therefore, the use of the term "we" in this context aligns with the appellant's earlier statements, without necessarily contradicting those earlier statements. Furthermore, the appellant never states, at any point in the record, that the dispensation was procured solely by the Veteran and she never explicitly disavows her November 1980 statement that she was the party which obtained the dispensation. The reason the Board has focused so heavily on who obtained the dispensation in this case is because such an action by the appellant demonstrates a definite intent on her part to end the marriage and to desert the Veteran. Thus, the Board finds that the appellant procured the 1975 dispensation and thus deserted the Veteran, though legally still married to him; such desertion breaks the continuity of cohabitation in this case. See 38 C.F.R. § 3.53(b). In reaching the above conclusion, the Board acknowledges the June 2011 statement from the Veteran's representative in which it was argued that the Veteran, and not the claimant, was the party responsible for the marital separation. This contention has been considered, but for all of the reasons discussed extensively above, the Board disagrees. Rather, the preponderance of the evidence suggests that the claimant initiated the separation. Regardless of whether the procurement of the dispensation was caused by the appellant or was mutual in nature, other evidence of record supports a finding that the appellant had a definite intent to end the marriage, including the Veteran's statements regarding the apportionment which indicated that the appellant was residing with another man and that she had left him. In fact, part of the Veteran's attempt to procure a divorce in June 1993 appears to stem from the fact that the appellant was living with another man, had never loved him, that she had left him and was attempting to get his money. While this act of attempting to get a divorce was a unilateral act by the Veteran, it appears that such act-at least in the mind of the Veteran-was taken after such intent to end the marriage was signaled by the appellant. The Board notes that ultimately such act was unsuccessful, as the divorce decree was set aside in March 1994. Thus, the separation occurred prior to the Veteran's attempt to get a divorce and cannot be said to have been due to the misconduct of, or be procured by, the Veteran as the record clearly demonstrates that the appellant and the Veteran were separated well prior to the Veteran's unilateral act of seeking a divorce in June 1993. While it is unclear whether the appellant did indeed live with another man in 1981, or any time after 1975-or whether she lived with her parents-the preponderance of the evidence of record demonstrates that she did not always hold herself out to be the wife of the Veteran, but instead used her maiden name. Such is evidenced by the appellant's friend's November 2009 statement noting that the appellant was known around town by her maiden name, as was custom, and not necessarily as the Veteran's spouse. From the above, it appears that the appellant had been disclaiming the use of the Veteran's surname. The effect of such disclaimer, while not specifically holding herself out as "spouse of such other person" for purposes of 38 C.F.R. § 3.50(b)(2), demonstrates at the very least that she held herself out to the public as not married to the Veteran. The Board acknowledges that the appellant's legal name still included the Veteran's surname; however, it appears to the Board that the appellant in this case held herself out to the public as not married to him, particularly by reverting to the use of her maiden name while living with her parents. Such actions further connote intent to definitively end the marriage, even if such procurement of the marriage dispensation-the ultimate reason for the appellant and Veteran's separation-was due to "mutual consent." In summary, the preponderance of the evidence of record demonstrates that the marriage dispensation-the reason for the separation in this case-appears to have been procured by the appellant in this case; such procurement effectuated an intent by the appellant to desert the Veteran, and thus breaks the rule of continuous cohabitation in this case. See 38 C.F.R. §§ 3.50, 3.53. However, even if such a procurement of the dispensation was by mutual consent in this case, such further intent by the appellant to desert the Veteran is demonstrated by the Veteran's statements in 1981 noting that the appellant left him, as well as the appellant's action of holding herself out to the public by her maiden name-demonstrating a disclaimer of the marriage-though she never appeared to hold herself out as married to any other man throughout the appeal period. In this case, the appellant moved back into her parents' home and began disclaiming the Veteran's surname, essentially holding herself out as unmarried; such demonstrates a definite intent to end the marriage by the appellant in this case. See Alpough, supra. Accordingly, the Board finds that the appellant cannot be recognized as the surviving spouse in this case, and thus, entitlement to DIC benefits must be denied as the appellant is not a proper claimant for those benefits. See 38 C.F.R. §§ 3.50, 3.53; Alpough, supra. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Recognition of the appellant as the surviving spouse, and as a proper claimant to the award of DIC benefits, is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs