Citation Nr: 1144833 Decision Date: 12/08/11 Archive Date: 12/14/11 DOCKET NO. 09-10 053 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement of the appellant to recognition as the surviving spouse of the Veteran for the purpose of VA benefits. 2. Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESSES AT HEARING ON APPEAL Appellant & Daughter ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran served on active duty from October 1948 to December 1952. He died in January 2006. The appellant is requesting recognition as his surviving spouse for the purposes of DIC cause of death benefits. This appeal to the Board of Veterans' Appeals (Board) arose from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington that, among other things, denied entitlement to service connection for the cause of the Veteran's death. The appellant filed a Notice of Disagreement (NOD). In a January 2009 statement of the case, the RO recharacterized the issue as entitlement to VA death benefits as the surviving spouse and denied the claim finding that the appellant was not the surviving spouse of the Veteran. In April 2011, the appellant and her daughter testified at a Travel Board hearing before the undersigned; a transcript of that hearing is of record. The issue of entitlement to service connection for the cause of the Veteran's death 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. FINDINGS OF FACT 1. The marriage between the Veteran and the appellant in January 1963 was not legally terminated and was valid at the time of his death. 2. The appellant did not continuously cohabitate with the Veteran prior to his death, but her separation from the Veteran was due to his misconduct without fault on her part. CONCLUSION OF LAW The requirements for recognition of the appellant as the Veteran's surviving spouse for VA benefits purposes have been met. 38 U.S.C.A. §§ 101(3), 103 (West 2002); 38 C.F.R. §§ 3.1(j), 3.50, 3.53 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION As the Board herein determines that the appellant is entitled to recognition as the Veteran's surviving spouse for the purpose of VA benefits, such constitutes a complete grant of the benefit sought on appeal and, therefore, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and the implementing regulations. The law provides that a spouse is a person of the opposite sex who is a husband or wife. 38 U.S.C.A. § 101(31); 38 C.F.R. § 3.50(c). A wife is a person whose marriage to the veteran meets the requirements of 38 C.F.R. § 3.1(j). 38 C.F.R. § 3.50(a). For VA benefits purposes, a marriage means a marriage 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. 38 C.F.R. § 3.1(j). The appellant has the burden to establish her status as a claimant. Sandoval v. Brown, 7 Vet. App. 7, 9 (1994) citing Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). The appellant reported that she married the Veteran in January 1963 in Turlock, California. She contended that although she filed for divorce and was issued an Interlocutory Interlocutory Decree of Divorce dated in May 1968, the divorce was never finalized. After one year lapsed with no answer from the Veteran, she would have been required to take further steps, including paying her attorney another $500, to finalize the divorce, which she did not do. She understood that the Interlocutory Decree, without any further action, constituted a legal separation. She reported that she and the Veteran reconciled at least four different times and other times Veteran would often stay at her home. She reported that she filed multiple times for divorce, once in Modesto, California and four times in Yakima, Washington during the 1960's; however, none of the filings ever became finalized. The appellant further contends that VA's requirement that she provide a legal document to prove that the Interlocutory Decree of Divorce was never finalized is not a fair or reasonable request as such a document does not exist. She would only have further documents if she had proceeded to finalize the divorce. She reports that none of the divorce filings ever became final. See August 2007 NOD, November 2006 and March 2009 statements, and March 2009 Form 9. The record is devoid of any documentation regarding any divorce filings other than the May 1968 Interlocutory Decree of Divorce. In December 2008, VA contacted the Stanislaus County Recorder, in Modesto California, and requested copies of any divorce decree on file. In January 2009, an Interlocutory Decree of Divorce was submitted and showed that the Interlocutory Decree of Divorce was entered on May [redacted], 1968 in the Superior Court of the State of California in and for the County of Stanislaus. It was noted that the Veteran had been served with process and had not answered the Complaint for Divorce. The appellant was awarded an Interlocutory Decree of Divorce from the defendant upon the ground of extreme cruelty, and that the same would become final after the elapse of one-year from the date of service of summons and complaint upon the defendant. Custody rights and property were divided. Child support was established. However, there is no evidence that a final decree or judgment granting the divorce was ever entered. At the time of the 1968 Interlocutory Decree, the California Civil Code required the entry of a final judgment at least one year after the entry of an Interlocutory Decree. Civ. Code, §§ 131, 132 (Cal. Civ. Code) (repealed by Stat. 1969). It was well settled that the passage of the one year period after the Interlocutory Decree did not cause a divorce to be final; and that it was only the final decree that granted divorce and an Interlocutory judgment did not have that effect. In re Dargie's Estate, 162 Cal. 51, 121 P. 320 (Cal. Jan 24, 1912); see In re Fawcett's Estate, 232 Cal.App.2d 770, 779 (Cal.App. 1965). As the Stanislaus County Recorder only submitted an Interlocutory Decree of Divorce and there is no evidence of a final decree, the evidence is against a finding that the divorce was finalized. The Board also acknowledges that the appellant indicated that she had filed for divorce in Yakima, Washington on four separate occasions in the 1960's, but had never finalized the divorce. In the State of Washington a final divorce decree must also be pronounced. See State v. Superior Court of Washington for Kitsap County, 46 Wash. 395, 90 P. 258 (Wash. Jun 04, 1907) (The judge and the parties having regarded his announcement in the former suit as merely a guide to the preparation of written findings, which, when signed, were to be regarded as the real findings on which the decree should be based, the cause having been deemed still pending until the formal findings should be so prepared and signed, the cause was never concluded and no decree of divorce was pronounced, and hence plaintiff had no right to have a decree entered nunc pro tunc.) There is no evidence that a divorce decree was issued in the Washington. As the appellant's contentions credible that she filed for divorce, had periods of reconciliation, and none of her filings for divorce became final, the Board finds that the evidence favors the conclusion that the appellant and the Veteran were never divorced. The term "surviving spouse," for VA purposes, 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. 38 U.S.C.A. § 101(3) 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) (2011). The statement 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 by mutual consent and that the parties lived apart for purposes of convenience, health, business, or any other reason which 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. 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). The appellant contends that although she and the Veteran did not continuously live together, the separation was due to the Veteran's behavior. The Veteran and the appellant had a daughter together in September 1963. The appellant reported that her marriage with the Veteran was very stormy. He was restless, anxious, and explosive. He drank heavily and could not stay in one place for more than a few weeks. They traveled between Modesto, California and Yakima, Washington continuously. In 1970, she left Modesto with her daughter and returned to her home in Yakima. The Veteran continued to travel between Modesto and Yakima as he could not remain in the same place. Due to his heavy drinking, his inability to manage his anger as well, and his threats of killing himself, the appellant, and their daughter, the marriage deteriorated. The May 1968 Interlocutory Decree of Divorce was issued upon the ground of extreme cruelty on the Veteran's part. She reported that she and the Veteran reconciled at least four different times. The Veteran would often stay at her home for as long as he could stand it then head back to Modesto again. When he became blind, he lived with her for a while and eventually moved into a nearby house in Yakima. See August 2007 NOD, November 2006 and March 2009 statements and April 2011 hearing transcript. A review of the record reflects that the appellant often accompanied the Veteran to his medical appointments and helped him obtain his VA benefits. She was in charge of his medications and communication with his caregivers. She provided transportation for him, entertainment, and companionship as well as did his grocery shopping. She claimed that she always felt like she was his wife. A treatment record dated in December 1997 from the Visual Impairment Services Team included a history of the Veteran being married; however, he was physically violent and jailed for domestic violence prior to his divorce. A February 1998 treatment record from Yakama Valley Vet Center noted that the Veteran couldn't settle down and often moved from Washington, to Oregon, to California and back and forth. In June 2002, the Veteran signed a will that left his property to the appellant. Receipts and an invoice from the Keith and Keith Funeral Home dated in January 2006 reveal that the appellant paid all of the Veteran's funeral expenses. In February 2009 correspondence, the appellant's daughter and son-in-law reported that the appellant and the Veteran did not cohabitate because the appellant had to "maintain space" between herself and the Veteran due to the Veteran's frequent destructive and out-of control behavior. The appellant continued to "love, care for, and support the Veteran until the end." She spent almost every day with him, unless his behavior became unmanageable in which case she would take a break for a couple of days. Whenever he left town, he would just show up at the appellant's house and stay there until he got his own place in Yakima during the final years. She acted as a spouse with the level of devotion and support that only a life-partner would give. In a March 2009 statement the appellant's daughter stated that her mother and father were married throughout her entire life. Her mother had "no other choice," but to separate from her father when she was about 5 or 6 due to his drinking and abusive behavior. Although the appellant did not continuously cohabitate with the Veteran prior to his death, her statements are to the effect that their separation was caused by his misconduct. There is no contradictory evidence. In fact, the statements submitted by her daughter and son-in-law, supports the appellant's contention that the Veteran was abusive and destructive. Therefore, the Board finds that the separation was due to the misconduct of, or procured by, the Veteran without the fault of the appellant. The evidence shows that the appellant's January 1963 marriage to the Veteran was still valid at the time of his death and had not been dissolved by divorce or a decree of nullity and she was without fault in their separation. Therefore, the appellant is entitled to recognition as the Veteran's surviving spouse for VA benefits purposes. See 38 C.F.R. §§ 3.50, 3.53. ORDER The appellant is entitled to recognition as the surviving spouse of the Veteran for the purpose of VA benefits; to that extent only the appeal is granted. REMAND In August 2007, the appellant filed a notice of disagreement with the January 2007 rating decision that denied service connection for the cause of the Veteran's death. A statement of the case has not been issued as it relates to this issue. The Board is required to remand the case for issuance of the statement of the case. Manlicon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: Issue a SOC on the issue of entitlement to service connection for the cause of the Veteran's death decided in the January 2007 rating decision. The issue should be certified to the Board only if a timely substantive appeal is received. 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. 2010). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs