Citation Nr: 1224136	
Decision Date: 07/12/12    Archive Date: 07/18/12

DOCKET NO.  08-35 251	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to recognition as the surviving spouse of the Veteran for the purpose of receiving VA death benefits.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

A. Michel, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1970 to August 1971.  He died in January 2006.  The appellant asserts that she is his surviving spouse. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania.  
 

FINDINGS OF FACT

1.  The appellant and the Veteran were married in May 1970; the Veteran died in January 2006.

2.  The appellant did not live with the Veteran continuously from the date of marriage to the date of his death; this separation was not due to the misconduct of, or procured by, the Veteran without fault of the spouse.


CONCLUSION OF LAW

The appellant is not the Veteran's surviving spouse for VA death benefit purposes.  38 U.S.C.A. § 101 (West 2002 and Supp. 2009); 38 C.F.R. §§ 3.1(j), 3.50 (2011).







REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2011), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2011), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008.

The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).

The appellant was provided VCAA notice in May 2006, prior to the initial adjudication of the claim.

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 appellant's marriage certificate and the Veteran's certificate of death.  The appellant has been accorded ample opportunity to present evidence and argument in support of the appeal.  Although informed of the type of evidence that she should submit or identify to support her claim, neither the appellant nor her representative has done so.  The Board also is unaware of any outstanding evidence that could be obtained to substantiate the claim.  

In sum, the Board is satisfied that any procedural errors in the originating agency's development and consideration of the claim were insignificant and non prejudicial to the appellant.  Accordingly, the Board will address the merits of the claim.

Legal Criteria

VA law provides for dependency and indemnity compensation 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) (West 2002); 38 C.F.R. § 3.5 (2011).  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 or 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 (2011).

A recognized marriage for VA purposes is defined as one which is 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 U.S.C.A. § 103(c) (West 2002); 38 C.F.R. § 3.1(j) (2011).  A valid marriage may be established by various types of documentary evidence together with the claimant's certified statement concerning the date, place, and circumstances of dissolution of any prior marriage, provided that such facts, if they were to be corroborated by the evidence, would warrant acceptance of the marriage as valid.  38 C.F.R. § 3.205(a) (2011).

In jurisdictions where marriages other than by ceremony are recognized, the affidavits or certified statements of one or both of the parties to the marriage, if living, setting forth all of the facts and circumstances concerning the alleged marriage, such as the agreement between the parties at the beginning of their cohabitation, the period of cohabitation, places and dates of residences, and whether children were born as the result of the relationship.  This evidence should be supplemented by affidavits or certified statements from two or more persons who know as the result of personal observation the reputed relationship which existed between the parties to the alleged marriage including the periods of cohabitation, places of residences, whether the parties held themselves out as married and whether they were generally accepted as such in the communities in which they lived.  38 C.F.R. § 3.205(a) (6) (2011).

The term "spouse" means a person of the opposite sex whose marriage to the veteran meets the requirements of 38 U.S.C.A. § 103(c); 38 C.F.R. § 3.1(j), which means a marriage valid under the law of the place where the parties resided at the time of the marriage, or the law of the place where the parties resided when the right to benefits accrued.  See 38 C.F.R. § 3.50(a) (2011).

The term "surviving spouse" means 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(b).

Analysis

The appellant seeks to have status as the Veteran's surviving spouse in order to receive VA benefits.  Service connection for the cause of the Veteran's death was denied in a July 2006 rating decision.

The record establishes that the appellant and the Veteran were married in May 1970, and the Veteran died in January 2006.  The marriage took place in Pennsylvania, home of the appellant and the Veteran. 

The Board notes that in an application for compensation in December 1980 the Veteran noted that he was not living with his spouse.  The reason for separation was noted as "non-comp"; the present address of his spouse was noted as "unknown".  The Veteran indicated that the marriage was terminated by way of separation in November 1977.

VA medical center (VAMC) records also showed the Veteran reported that he was divorced.

The Veteran submitted an application for compensation in December 2004 in which he wrote "separated" in the section asking his marital status.

The Veteran also submitted an income, net worth, and employment statement in January 2005 in which he noted that he was married, but they were not living together.

A VA examination in March 2005 showed that the Veteran reported that he was married in 1970, separated after two years, never remarried, and was incarcerated in 1999 for aggravated assault.

A September 2004 Criminal Registration Certificate for the Veteran showed that he was on parole in August 2009.

An April 2008 letter from the Department of Corrections from the Commonwealth of Pennsylvania noted that the Veteran was under supervision/parole at the time of his death, housed at a halfway house, took ill in December 2005, and died in January 2006.

As outlined in the appellant's notice of disagreement, she stated that she did not live with the Veteran because he was in prison and then lived in a halfway house; otherwise, they would have been in the same house.  

In her formal appeal, VA Form 9, she contends that she and the Veteran lived apart some time because he was either in jail or just getting himself together, but they were always husband and wife; the church and their family all recognized that they were always together; and her late husband was always there for her.  

Nonetheless, based upon the evidence of record, the Board finds that the appellant did not live with the Veteran continuously from the date of marriage to the date of incarceration.

As stated above, and communicated to the appellant in the May 2006 VCAA notice and in additional notice in January 2009, "surviving spouse" means a person 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(b).  

The appellant was notified that corroborating evidence of continuous cohabitation included statements from other individuals certifying that the she and the Veteran lived together from May 1970 until 1999, the date in which he was incarcerated.

Neither the appellant nor her representative has responded to the request for evidence of the alleged continuous cohabitation.

The evidence of record shows that the Veteran and appellant did not live together from 1999 until the date of his death because the Veteran was incarcerated or on parole.  However, even assuming that this period of separation was at the fault of the Veteran due to incarceration, the evidence of record does not support the appellant's contentions that there was continuous habitation from the date of their marriage in April 1970 until the time he was incarcerated in 1999.  In fact, the preponderance of the evidence establishes that the Veteran and the appellant did not continuously cohabit during that time period, and there is no evidence indicating that this period of separation was solely due to the fault of the Veteran.  Therefore, the regulatory criteria for recognition as a surviving spouse for VA purposes are not met.

To some extent, the appellant appears to be raising an argument couched in equity.  However, the Board has no option but to decide this case in accordance with the applicable law.  Thus, the appellant's claim must be denied.  

The Board may not grant a benefit that the appellant is not eligible to receive under the law.  See Davenport v. Principi, 16 Vet. App. 522 (2002); Harvey v. Brown, 6 Vet. App. 416 (1994).  In other words, unless a claimant meets all of the requirements of a particular law, he or she is not entitled to the benefit; and the benefit cannot be awarded, regardless of the circumstances.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).  Thus, the Board, while sympathetic to the appellant's arguments, must deny this appeal.

ORDER

Entitlement to recognition as the Veteran's surviving spouse for the purpose of establishing entitlement to VA death benefits is denied.




____________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs