Citation Nr: 1300332 Decision Date: 01/04/13 Archive Date: 01/11/13 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 under 38 U.S.C.A. § 1318, to include whether the appellant is the Veteran's surviving spouse. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The Veteran had active duty service from January 1951 to March 1952 and was awarded a Purple Heart for his service. The Veteran died in September 2007, in Ireland. Part of the issue in this case is whether the appellant is considered the Veteran's surviving spouse for VA purposes. 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 (West 2002). 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. In June 2011, the Board denied the claim on appeal. In February 2012, the Court of Appeals for Veterans Claims (Court) approved a joint motion for remand for action consistent with the remand in an Order. The claim returns to the Board for adjudication. FINDINGS OF FACT 1. The Veteran and the appellant were married in 1966 in Ireland, under Irish law. 2. The September 1975 Catholic Church annulment was filed by the Veteran and does not have any legal effect under the civil law of Ireland; it 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. There is currently no evidence in the file showing that the Veteran filed another divorce action in the United States at any time or in Ireland after 1995 when such actions became legal there. 5. The appellant was the lawful spouse of the Veteran at the time of his death and has not remarried and had not cohabitated with the Veteran since approximately 1975. 7. The evidence is in equipoise as to whether the separation was due to the misconduct of, or procured by, the Veteran without the fault of the appellant. 8. At death, the Veteran had been in receipt of a total disability rating for individual unemployability (TDIU) since November 1965. CONCLUSIONS OF LAW 1. Resolving doubt in favor of the appellant, the criteria establishing recognition of the appellant as surviving spouse, and as a proper claimant for DIC benefits, are met. 38 U.S.C.A. §§ 101, 103, 1102, 1304, 1541 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.50, 3.53, 3.54, 3.202, 3.205, 3.207, 3.215 (2012). 2. The criteria for DIC under 38 U.S.C.A. § 1318 have been met. 38 U.S.C.A. § 1318 (West 2002); 38 C.F.R. § 3.22 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The appellant waived all Veterans Claims Assistance Act of 2000 (VCAA) notice and RO adjudication of recent submission of evidence in a September 2012 communication from her attorney representative. In any case, given the favorable disposition of the claim, the Board finds that all notification and development actions needed to fairly adjudicate these claims have been accomplished. Whether the Appellant is a Qualifying Spouse for VA Benefits 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. 2011); 38 C.F.R. § 3.54 (2012). 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). In determining whether or not a person is or was the spouse of a veteran, their marriage shall be proven as valid for the purposes of all laws administered by the Secretary according to 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. 38 U.S.C.A. § 103(c) (West 2002); 38 C.F.R. § 3.1(j). "Surviving spouse" means a person of the opposite sex whose marriage to the veteran meets the requirements of § 3.1(j) and who was the spouse of the veteran at the time of the veteran's death. 38 C.F.R. § 3.50(b). Additionally, the spouse must have 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. 38 C.F.R. § 3.50(b)(1). Finally, the spouse must not have remarried or (since the death of the veteran and after September 19, 1962) lived with another person of the opposite sex and held himself or herself out openly to the public to be the spouse of such other person. 38 C.F.R. § 3.50(b)(2). (See also § 3.52, regarding the validity of marriages when there was cohabitation and an unknown impediment.) Essentially, the surviving spouse's fault or absence of fault for separation, for purposes of determining entitlement to surviving spouse benefits, is to be determined based on analysis of conduct at time of separation. Gregory v. Brown, 5 Vet. App. 108 (1993). Certain conduct subsequent to the time of separation may be relevant in an appropriate case with respect to the question of fault at the time of separation, but the mere acts of seeking divorce and failing to reconcile are not in and of themselves relevant to fault, and, standing alone, do not constitute evidence of fault at the time of separation. 5 Vet. App. at 112. Further, if a spouse has been physically and emotionally abused and separates from the abuser, the abused spouse's acts of initiating a divorce and refusing to reconcile would not be competent evidence to demonstrate fault on the part of the abused spouse at the time of the separation. Id. The continuous cohabitation element is further explained in § 3.53(a); it states that the general 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. Id. Regarding how VA is to make such determinations, the statement of the surviving spouse as to the reason for the separation will be accepted in the absence of contradictory information. 38 C.F.R. § 3.53(b). 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 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. Id. 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. Id. With respect to void or annulled marriages, 38 C.F.R. § 3.207 states that proof that a marriage was void or has been annulled should consist of: (a) a certified statement from the claimant setting forth the circumstances which rendered the marriage void, together with such other evidence as may be required for a determination and (b) a copy or abstract of the decree of annulment. Id. A decree regular on its face will be accepted unless there is reason to question the basic authority of the court to render annulment decrees or there is evidence indicating that the annulment may have been obtained through fraud by either party or by collusion. 38 C.F.R. § 3.207(b). When the claim is in equipoise, the reasonable doubt rule is for application. See, 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). Here, the Veteran was wounded in action while in service in Korea in September 1951. He was granted service connection for an amputation of the right leg below the knee, along with hepatitis and residuals of multiple shell fragment wounds to the left leg and forearm. He was also awarded special monthly compensation for the loss of use of the right leg. An April 1966 certificate of marriage shows the Veteran and the appellant were married in Ireland. A September 1975 document translated from Latin states that the marriage was not consummated and the Catholic Church allowed the marriage to be "dispensated" and, as a result, it was forbidden for the appellant to proceed to another marriage without consultation of the sacred congregation. This document identifies the Veteran as the petitioner in the case. The appellant was the party subject to the proceedings. An accompanying November 1975 document explains it is a copy of a "rescript from the Archdiocese" that dissolved the marriage of the Veteran and the appellant. A February 1976 memorandum from the American Embassy in Dublin reflects that the Veteran "called in person" at the Embassy to inform staff his marriage had been annulled. The Embassy staff said to the best of their knowledge, a Church annulment in Ireland did not dissolve the marriage legally because it was not recognized by the state. A January 1977 letter from the Veteran indicated that his marriage had been annulled and he was seeking to stop his dependent's allowance on his service-connected compensation. A May 1977 VA control document and award letter in file showed the dependency number was zero. In November 1980, a letter from the appellant's solicitors explained that the Veteran had made no contribution of support for his wife for the past twelve years. This letter asserts that in February 1966 the appellant obtained a church annulment of her marriage (despite the 1966 reference, the November 1975 letter from the archbishop was enclosed and referenced). The appellant had suffered hardship because she had a long commute to work and had "for some years now" lived with her parents. In a May 1981 follow up letter, the appellant stated she was still legally married even though "we have a Catholic church annulment." In June 1981, the RO requested clarification from VA District Counsel, who provided a July 1981 memorandum in response. This memorandum notes the 1966 marriage in Ireland, separation prior to 1975, and ecclesiastical dispensation in September 1975. The effect was that the church considered the marriage not to have happened; under civil law, the Veteran and appellant were still married. The memorandum concluded that the marriage was not legally dissolved. Both the Veteran and the appellant provided answers to questions regarding the apportionment request. In August 1981, the Veteran said of the appellant: She is now living with another man and has never loved me, just was after my money since, it is hard times in Ireland, and when she left for I would not give her all the money she asked for as we had to buy food and all the necessities of life (sic). He was currently in California and mentioned the expense of buying a plane ticket for his "vacation" in Ireland. A September 1981 RO contact form states further that the Veteran came to RO and was advised to obtain counsel and a divorce. The Veteran said he had not been living with his wife for ten years and she was living with another man. The appellant stated that she and the Veteran were still separated and that she did not intend to take legal action to end the marriage. In any case, one could not take legal action in Ireland because divorce was not legally recognized there. The Veteran did not give her money to support herself and had not done so for the past twelve years. The income she had was from her own work. She had no children and lived with her parents. The October 1981 special apportionment decision was denied because it was determined apportionment would create a hardship for the Veteran while there was no hardship for spouse. The appellant was informed she did not meet the requirement of spouse of the Veteran for VA purposes. An undated statement of the appellant in the file was received by the Board in October 2012. It contains the following statement, and must have been created sometime in or after October 1992: "On 20 October 1992, he served me with divorce proceedings. I didn't sign the divorce form." After her marriage in 1966, the Veteran "had a drink problem" and was violent. She said she received beatings from him and they separated in 1969. She said their marriage was never consummated, she received a Church annulment and he "lived off me while we were married." He used to have a "drink(ing) and gambling problem," but currently only had a gambling problem. In February 1993, an Irish Court document (not submitted until October 2012) shows that the appellant was unemployed and lawfully married to the Veteran. They were not living together. The Irish Court found the Veteran assaulted the applicant and in 1969 "she was forced to separate from him." He had a good standard of living while she was on welfare and refused to maintain her. Another Irish Court document dated in April 1993 (also received by the Board in October 2012) labeled "Circuit Court hearing" showed testimony of both parties. Her testimony accused the Veteran of infidelity, lying, and choking her. She also mentioned people stealing his money as well as habits of drinking and gambling. She stated: "There was a Church Annulment in 1975 because he couldn't consummate the marriage." His testimony accused the appellant of being abusive to her family; he essentially denied abusing his wife. He said he drank heavily during the marriage but then did not drink for twelve years. "She left at the time. I stayed and gave her money." He appeared to admit he had won some gambling bets. An April 1993 Irish Court document ordered the Veteran to maintain the appellant. In June 1993, a county Superior Court notice (from a municipality in the United States) showed an entry of judgment for dissolution of marriage. In December, the Veteran wrote to VA and explained he had "legal proceedings going on at present" and needed access to his file; he requested that it be transferred to a nearby RO. In March 1994 an Order from the same court, after a hearing regarding jurisdictional issues, shows the respondent (appellant) filed notice of motion to set aside judgment. This Order noted that the Veteran appeared personally and with counsel; the appellant was not present. The Superior Court found: 1) the Veteran did not serve of divorce papers to the appellant and as a result the judgment of divorce (dissolution of marriage) was set aside; 2) the state had no personal jurisdiction over the appellant, and the judgment regarding property was set aside; and 3) the Veteran was domiciled in the state, therefore the state had authority to issue a judgment dissolving marital status. The Veteran was free to reinstitute appropriate legal proceedings. However, there is no documentation in the file showing that he ever did try to get another divorce in the United States. The death certificate indicates the Veteran died in September 2007 in Ireland. His former residence was Ireland and he was listed as married. The appellant claimed in a September 2010 appeal that to the best of her knowledge, no further action regarding divorce was taken by the Veteran before his death. In a December 2007 statement the appellant explained that she and the Veteran were separated but still legally married. They lived at separate addresses in Ireland. Her December 2007 Social Security Administration (SSA) application explained she was not a U.S. citizen and she said: "The deceased or I never received a federal agency monthly benefit based in whole or in part on the deceased military service nor do I expect to receive such a benefit." She explained that the Veteran and she were separated "living apart for many years." In her June 2008 claim, the appellant explained that she did not live continuously with the Veteran until the date of his death. The form asked for the cause of the separation as well as the reason, date, and duration. She responded: "Living apart since 1975 still married according to Irish law (sic). Not divorced." A statement from her solicitor in August 2008 explained that in Ireland there was a situation where a person could obtain a church annulment with no standing, legal or otherwise, in civil law. In her April 2009 notice of disagreement, the appellant stated she had never been divorced in any country and explained: "My annulment is strictly a religious promise which allowed me to have a male friend if I so wished without breaking my connection with my church." A November 2009 statement by T.D. explains that he was a disabled veteran who was asked by the appellant to help with her claim. He noted the August 2010 RO decision that stated the appellant and the Veteran were divorced; T.D. asserted this was not true and pointed out the death certificate showed the Veteran was married at death. T.D. explained he went to school with the Veteran in Ireland, became a citizen of the U.S. in the 1950s under a law passed by Congress, and had known the appellant since she was born. T.D. said the appellant was known as her maiden name in Ireland "as is the custom" and stated that her SSA and Medicare cards reflected that name. A March 2009 letter from a solicitor stated that he could confirm from inquiries that no application was ever made to the appropriate court in Ireland for a decree of divorce or "Legal Criteria Separation" from the Veteran. A June 2011 informal hearing presentation stated that it was the Veteran who obtained the Vatican annulment and tried to obtain the divorce; the Veteran was the one responsible for the separation, not the appellant. In September 2012, the appellant's representative stated the same and also referenced the 1993 Irish family court documents submitted with that filing, where the appellant alleged the Veteran was an alcoholic and physically abusive. Here, the Board finds that the appellant and the Veteran were still legally married at the time of his death, but that they did not live together continuously from the date of marriage to the date of the Veteran's death. 38 C.F.R. § 3.50(b)(1). The Church annulment does not satisfy the proof of civil annulment required by 38 C.F.R. § 3.207. The question is whether the separation was due to the misconduct of, or procured by, the Veteran without the fault of the appellant. § 3.50(b)(1). The Board must do an analysis of the conduct at time of separation and take into account allegations of abuse. Gregory, 5 Vet. App. 108. The Board finds the appellant made inaccurate statements before both SSA (stating the Veteran never received any benefits in her December 2007 application) and before the Superior Court (evidently stating through counsel that she never received process for the 1993 divorce and admitting an undated statement she did receive process). Also, in her June 2008 claim, she said they had been living apart since 1975 while in the undated statement (received by VA in October 2012) she claimed they separated in 1969. As a result, the Board does not find her necessarily to be a reliable source of information which undercuts her overall credibility. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). However, when considering 38 C.F.R. § 3.53(b), which provides that the statement of the surviving spouse as to the reason for the separation will be accepted in the absence of contradictory information, the Board finds the claim is in equipoise. A consideration is the fact that while alive the Veteran admitted to heavy drinking during the marriage; thus he may not have recalled his own abuse due to impairment. While the Veteran did deny any abuse, the September 1975 Church annulment stating that the Veteran was the petitioner is some evidence that he requested the Church annulment (despite later contrary statements from the appellant stating she requested it). Further supporting that he procured the separation in 1975 was the attempted divorce in 1993 and the appellant's assertion that she did not intend to take legal action end the marriage years later in August 1981. The Board observes that the Veteran indicated several times (in August and September 1981) that the appellant was living with someone else. Regulations do require that in order to qualify as a surviving spouse one may not live with another person of the opposite sex and hold his or her self out openly to the public to be the spouse of such other person. 38 C.F.R. § 3.50(b)(2). However, there is no indication in the record that the appellant ever held herself out to be the spouse of another person or that she is currently cohabitating with another person. As the claim is in equipoise, the Board finds that status as a surviving spouse for VA benefits is appropriate in this case. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. 38 U.S.C.A. § 1318 Benefits The appellant seeks entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1318. In pertinent part, 38 U.S.C.A. § 1318 authorizes the payment of DIC to a surviving spouse in cases where a Veteran's death was not service-connected, provided that the Veteran was in receipt of, or "entitled to receive" compensation at the rate of a 100 percent (total) rating due to service-connected disability for a period of at least 5 years from the date of his discharge or release from active duty, for 10 or more years immediately preceding his death or for a continuous period of not less than one year immediately preceding death, if the Veteran was a former prisoner of war who died after September 30, 1999. See also 38 C.F.R. § 3.22. Here, the death certificate shows the Veteran died of cardiogenic shock, myocardial infarction, and ischemic heart disease. These illnesses were not service-connected disabilities. However, the Board finds that the requirements of 38 U.S.C.A. § 1318 for an award of DIC benefits have been met; the Veteran had been in receipt of TDIU benefits since 1965, which is well over the 10 year requirement. While a grant of DIC under § 1318 does not moot a claim for service connection for the cause of the Veteran's death under § 1310 (see 38 U.S.C.A. § 2307), the appellant's June 2008 claim form stated she was not claiming service connection for the cause of the Veteran's death and her representative's September 2012 statement noted the issue was entitlement to DIC benefits under the provisions of § 1318 only. As a result, the Board finds granting the benefit resolves all issues on appeal. ORDER As the appellant is a qualifying spouse for VA purposes, entitlement to DIC benefits under 38 U.S.C.A. § 1318 is granted. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs