Citation Nr: 1127486 Decision Date: 07/22/11 Archive Date: 07/29/11 DOCKET NO. 03-25 021A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE 1. Whether new and material evidence has been submitted to reopen the claim for recognition as the surviving spouse of the Veteran for death pension benefits. 2. Entitlement to recognition of the Veteran's daughter, K., as a "helpless child" of the Veteran for the period beginning February 1, 2004 on the basis of permanent incapacity for self-support prior to attaining the age of eighteen. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from May 1972 to May 1975 and from April 1977 to February 1979. He died in December 1998 at the age of 44. The appellant is his former wife. The appellant has also filed a claim on behalf of her daughter, K. This matter comes before the Board of Veterans' Appeals (Board) from unfavorable decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In November 2004 the Board issued a decision which determined that prior to February 1, 2004 the daughter's income was at a level which precluded payment of VA benefits based on her alleged status as a helpless child. This decision remanded the issue of whether the daughter's income was excessive after February 1, 2004, for the payment of VA benefits. The Board notes that the RO subsequently determined that from February 1, 2004, the daughter's income was not excessive. The RO then determined that the daughter is not a helpless child for VA purposes and thus is not entitled to VA benefits. The Board issued a decision in September 2008 in which it denied recognition of the Veteran's daughter as a helpless child on the basis of permeanent incapacity for self-support prior to attaining the age of eighteen. The appellant appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). Pursuant to a January 2011 Memorandum Decision, the Court vacated the Board's September 2008 decision and remanded the case to the Board for further adjudication. The issue of entitlement to recognition of the daughter as a helpless child is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. Please note that 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. In an August 2002 decision, the Board denied the appellant's claim of entitlement to recognition as the surviving spouse of the Veteran for VA death pension purposes. 2. In January 2008, the appellant sought reopening of her claim for recognition as a surviving spouse of the Veteran for VA death pension purposes. 3. Evidence received since the final August 2002 Board decision denying recognition as the surviving spouse of the Veteran for VA death pension purposes relates to an unestablished fact necessary to substantiate the claim and, when the credibility of such evidence is presumed, raises a reasonable possibility of substantiating the claim. 4. The Veteran divorced the appellant in September 1994 and remained divorced from the appellant until his death in December 1998. CONCLUSIONS OF LAW 1. The August 2002 Board decision denying recognition of the appellant as the surviving spouse of the Veteran for VA death pension purposes is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 3.105, 20.1000, 20.1001, 20.1100 (2010). 2. New and material evidence has been received to warrant reopening of the claim for recognition as the surviving spouse of the Veteran for VA death pension purposes. 38 U.S.C.A. §§ 5107, 5108 (West 2002); 38 C.F.R. § 3.156 (2010). 3. The criteria for recognition of the appellant as the surviving spouse of the Veteran for VA death pension purposes have not been met. 38 U.S.C.A. §§ 101, 1541, 5107 (West 2002); 38 C.F.R. §§ 3.5, 3.50, 3.55 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010), and implemented at 38 C.F.R. § 3.159 (2010), amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. Since the previously final claim for recognition as a surviving spouse of the Veteran for VA death pension purposes has been reopened, the Board need not discuss whether the notice requirements of the VCAA which pertain to claims to reopen, as set forth in Kent v. Nicholson, 20 Vet. App. 1 (2006), have been met. With respect to the underlying claim for recognition as the Veteran's surviving spouse, the Board specifically finds, below, that the appellant may not be recognized as the surviving spouse of the veteran for the purpose of receiving VA death benefits. Similar to the case of Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001), the appellant has been fully notified and aware of the type of evidence required to substantiate her claim, and there is no reasonable possibility that any additional assistance would help the appellant substantiate her claim as, as a matter of law, she has no legal entitlement to the benefit being sought. In such a situation, the VCAA provisions do not apply. See Smith (Claudus) v. Gober, 14 Vet. App. 227, 231- 32 (2000); Livesay v. Principi, 15 Vet. App. 165, 178 (2001). The Board also concludes that VA has met its duty to assist the appellant in developing the evidence to support her claim. The record contains the Veteran's marriage certificate, divorce decree and death certificate. Statements from the appellant and her representative are associated with the claims file. The appellant has been accorded ample opportunity to present evidence and argument in support of the appeal. Subsequent to the November 2010 statement of the case, the Veteran provided a copy (printed off the Clark County Courts website) of a register of actions with respect to the Veteran's divorce action. This document is essentially duplicative of, and less detailed and less official than, the certified copy of the divorce decree provided by the State of Nevada Division of Health-Vital Statistics. Accordingly, a remand for RO review of the internet printout is not warranted. The Board is satisfied that the originating agency properly processed the appellant's claim after providing the required notice and that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and non-prejudicial to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2010). Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. For claims such as this one, filed on or after August 29, 2001, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 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. 38 C.F.R. § 3.156. To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The evidence of record at the time of the August 2002 final Board included the Veteran's and appellant's marriage certificate, the September 1994 divorce decree, the Veteran's death certificate, an April 2000 letter from an attorney indicating that the Veteran and the appellant were never divorced in North Carolina, and the appellant's testimony at a May 2002 hearing. There were no statements from a family member stating that the Veteran and appellant were married at the time the Veteran died. The newly submitted evidence includes a March 2010 statement from the appellant's mother to the effect that the appellant and the Veteran were continuously married from their marriage in August 1975 until the Veteran's death. Questions of credibility notwithstanding, the appellant's mother is certainly competent to describe the relationship between the appellant and the Veteran. Justus v. Principi, 3 Vet. App. at 513 (holding that for purposes of determining whether evidence is new and material, it must be presumed to be credible unless it is inherently incredible or beyond competence of witness). The appellant has now provided a statement from her mother to the effect that the appellant and Veteran were married at the time of the Veteran's death. Presuming the credibility of the mother's statement, the Board finds that the evidence discussed above is new and material evidence sufficient to reopen the claim. 38 C.F.R. § 3.156(a). Although the evidence discussed above is adequate for the limited purposes of reopening the claim, this does not make it sufficient to allow the grant of the benefits sought. See generally Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998) (material evidence is evidence that would contribute to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it would not be enough to convince the Board to grant the claim). Rather, the Board must now consider the reopened claim on the merits. Significantly, the Justus presumption of credibility does not attach after a claim has been reopened. Rather, in evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility, and therefore the probative value, of proffered evidence in the context of the record as a whole. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). De Novo Review The Board notes that because the RO has addressed the appellant's claim on the merits, and because she and her representative have been afforded an appropriate opportunity to provide evidence and argument on the underlying claim, no prejudice results from the Board's consideration of the claim on the merits. Bernard v. Brown, 4 Vet. App. 384 (1993). Governing law provides that VA dependency and indemnity compensation and death pension benefits may be paid to the "surviving spouse" of a veteran if certain requirements are met. 38 U.S.C.A. §§ 1304, 1310, 1311, 1541 (West 2002). Further, a "surviving spouse" is defined as 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 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 38 U.S.C.A. § 101(3); 38 C.F.R. § 3.50. Proof of divorce or termination of a prior marriage can be established by a certified copy or certified abstract of final decree of divorce or annulment specifically reciting the effects of the decree. 38 C.F.R. § 3.205(b) (2010). The validity of a divorce decree, regular on its face, will be questioned by VA only when such validity is put in issue by a party thereto or a person whose interest in a claim for VA benefits would be affected thereby. 38 C.F.R. § 3.206 (2010). In cases where recognition of the decree is thus brought into question, where the issue is whether the Veteran was single or married (dissolution of a subsisting marriage), there must be a bona fide domicile in addition to the standards of the granting jurisdiction respecting validity of divorce. 38 C.F.R. § 3.206(a). In this case the evidence clearly shows that the Veteran and the appellant were married in August 1975 and that they had a daughter in July 1976. However, the most probative evidence of record indicates that the Veteran was divorced from the appellant in September 1994. This is shown by a September 1994 divorce decree from the District Court in Clark County, Nevada. The Board further notes that the Veteran's December 1998 death certificate shows that the Veteran was married to a woman other than the appellant at the time of his death. A divorce can be obtained in Nevada on the ground that the parties have lived separate and apart for one year without cohabitation. Nev.Rev.Stat. § 125.010(2). Nevada district courts have jurisdiction to grant a divorce if either party has been a resident for at least six weeks prior to commencement of the action. Nev.Rev.Stat. § 125.020(2). In addition, the Nevada Rules of Civil Procedure at Rule 4(e)(1)(iii) provide for service by publication and the depositing of a copy of the summons and complaint in the post office addressed to the nonresident defendant. In light of the evidence that the appellant was separated from the Veteran for many years (see Veteran's written statements that he and the appellant were separated dated in February 1984, September 1985, January 1987, and November 1989); that the Veteran had lived in Nevada for the requisite six weeks (see July 1994 statement indicating the Veteran would be residing in Nevada and requesting his VA benefit check for two months hence be sent to Nevada), and the fact that the file contains an official copy of the Clark County Decree of Divorce, the Board finds that there is no basis for ordering a remand for further development into the validity of the divorce. In order to divorce under Nevada law, certain grounds for divorce (Nev.Rev.Stat. § 125.010) and jurisdictional requirements (Nev.Rev.Stat. § 125.020(2)) must be met. In addition, service of process must be in accordance with the Nevada Rules of Civil Procedure at Rule 4. The Board finds that these statutory and procedural requirements for marital dissolution have been met. The Board has considered the April 2000 letter from a North Carolina attorney who stated that a search of the civil action indexes for Robeson County, North Carolina from January 1, 1980 to December 31, 1999 revealed no divorce action was filed and no divorce was granted by or to the appellant or the Veteran. The Board notes that this evidence has no bearing on whether or not the Veteran and appellant were divorced in Nevada, and consequently this evidence is of little probative value. With regard to the statements of the appellant and her mother that the Veteran and appellant remained continuously married from the date of the marriage until the Veteran's death, these statements are not as probative as the divorce decree from Clark County. In January 2000 the appellant submitted a copy of the Veteran's obituary, which referred to the appellant as the Veteran's wife. The Board notes that this document presumably created by family members is not as probative as the divorce decree. The Board notes that in May 2002 the appellant testified before a Veterans Law Judge that she had had no knowledge prior to the Veteran's death that the Veteran had divorced her. She stated that after the Veteran's death the Veteran's aunt told her that the Veteran had divorced her. The appellant asserted that the Veteran had been mentally disabled and that he had been manipulated into divorcing her. The appellant stated that she had not remarried the Veteran after the 1994 divorce and repeated that she thought she had been continuously married to the Veteran from the date of marriage until the Veteran's death. In her statements and testimony the appellant has disputed the validity of the September 1994 divorce decree. In a May 2011 informal hearing presentation, the appellant's representative also questioned the validity of the September 1994 divorce decree. The Board acknowledges the Veteran's contention that a computer printout indicated that she signed an initial petition/pleading with respect to the divorce while she asserts she did not; however, the official divorce decree is clear that, as she says, she failed to answer, plead, or appear. Although the Board is sympathetic to these arguments, the appellant's dispute exists with the validity of the Nevada court's order rather than with VA. In reaching this determination, the Board notes that the appellant is essentially seeking to readjudicate the Veteran's petition for a divorce from her and the Board can provide her no recourse under these circumstances. For the reasons discussed above, the Board concludes that the September 1994 divorce decree remains the most probative and credible evidence of record, clearly establishing that the appellant and the Veteran were not married at the time of the Veteran's death. As such the appellant may not be recognized as the surviving spouse of the Veteran for death pension benefits. See 38 C.F.R. § 3.50. ORDER New and material evidence having been received, the application to reopen the claim of recognition as the surviving spouse of the Veteran for death pension benefits, is granted. Entitlement to recognition of the appellant as the Veteran's surviving spouse for VA death pension benefits purposes is denied. REMAND The January 2011 Decision of the Court states that in cases involving DIC claims, such as the current helpless child claim on appeal, VA may have a duty to provide a medical examination under 38 U.S.C.A. § 5103A(a). The Court noted that in Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that section 5103A(a) "excuses the VA from making reasonable efforts to provide such assistance, if requested, when "no reasonable possibility exists that such assistance would aid in substantiating the claim." In vacating the September 2008 Board decision the Court determined that the Board applied the wrong standard to determine that a VA medical examination was unnecessary to assist the appellant with her claim. The Court went on to state that the Board could deny the appellant's claim without provision of a medical examination to the Veteran's daughter only if the Board determined, based on the evidence of record, that no reasonable possibility exists that providing a medical examination would aid in substantiating the claim. See 38 U.S.C.A. § 5104A(a)(2). As shown below, the Board is unable to find that no reasonable possibility exists that a medical examination would aid in substantiating the claim. The Veteran's daughter reached the age of 18 in July 1994. An October 1992 letter from the Social Security Administration (SSA) specifically states that the daughter was in receipt of Supplemental Security Income (SSI) benefits due to being a disabled child. Consequently, there is evidence that the daughter became disabled prior to the age of 18. The Board notes that attempts to obtain the daughter's SSA medical records and private medical records, dated from prior to the age of 18 and dated thereafter, have been unsuccessful. A February 2005 Report of Contact with SSA indicates that SSA benefits to the daughter were discontinued in January 2004 due to the daughter's lack of cooperation in returning forms. There is no indication in the record that the Veteran's daughter has ever been successfully employed. In a June 2003 letter the appellant stated that her daughter had tried to work and had lost each job prior to completion of the first pay period. In May 2003 the appellant indicated that her daughter's disability was physical in nature. In other statements symptoms of a possible psychological disorder were described. The record includes a June 2004 statement from a high school teacher who stated that the daughter had been very hostile and would cause disturbances in class. In an October 2005 letter to SSA, the appellant described her daughter's disorder as depression. Based on the SSA determination that the daughter was disabled prior to the age 18, based on the inability to obtain past medical records, and based on the uncertainty of the daughter's disabilities prior to the age of 18, and thereafter, the Board is unable to find that there is no reasonable possibility that providing a medical examination to the daughter would aid in substantiating the claim. Accordingly, the Veteran's daughter should be afforded VA medical examinations. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. Afford the Veteran's daughter a VA general medical examination and a VA psychiatric examination. The entire claims file must be made available to the examiners, and the examination reports should include a discussion of the daughter's medical history, diagnoses of all current significant disabilities, and statements as to whether each disability found existed at the time of the daughter's 18th birthday. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. The examiners are asked to provide an opinion responding to the following question: Whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) the Veteran's daughter was permanently incapable of self-support at the time of her 18th birthday (July 22, 1994). A rationale for all opinions should be provided. 2. If the benefit sought on appeal remains denied, the RO must furnish to the appellant and her representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them an appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter 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 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. 2010). ____________________________________________ M. C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs