Citation Nr: 1301273 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 09-47 895 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Whether the appellant may be recognized as the surviving spouse of the Veteran for VA benefits purposes, to include entitlement to death pension and dependency and indemnity compensation benefits. REPRESENTATION Appellant represented by: Ronald Sykstus, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant, Appellant's Daughter ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran had active service from February 1943 to March 1947. The Veteran died in January 1974. The appellant seeks to establish eligibility as the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In February 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development and adjudication. FINDINGS OF FACT 1. The Veteran and the appellant were last married in January 1967 and separated due to the fault of the Veteran in 1970. Resolving all doubt in the appellant's favor, evidence of record showed the appellant and the Veteran remained married at the time of his death in January 1974. 2. Subsequent to the Veteran's death in January 1974, the appellant's eldest daughter received VA death benefits after establishing entitlement to service connection for the Veteran's cause of death. 3. At no time did the appellant receive VA benefits on her own behalf after the death of the Veteran. 4. The appellant married O. C. S. in June 1974, and continued to remain married to O. C. S. up until their divorce in July 1977. 5. The appellant married W. D. in July 1977, and continued to remain married to W. D. up until his death in March 2005. CONCLUSION OF LAW The appellant is not eligible to be the surviving spouse of the Veteran for VA benefits purposes, to include entitlement to death pension and dependency and indemnity compensation (DIC) benefits. 38 U.S.C.A. §§ 101, 103, 1310 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1(j), 3.50, 3.55, 3.205 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the context of a claim for DIC benefits, § 5103(a) notice must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). While there are particularized notice obligations with respect to a claim for DIC benefits, there is no preliminary obligation on the part of VA to conduct a pre-decisional adjudication of the claim prior to providing a § 5103(a)-compliant notice. Although VA has statutory and regulatory notice and duty to assist provisions, those provisions are not applicable herein as the above-captioned claim is being denied as a matter of law. Manning v. Principi, 16 Vet. App. 534, 542 (2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); see also 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). In addition, the duty to assist the appellant has also been satisfied in this case. The Veteran's service treatment records, as well as identified VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The evidence of record includes marriage, divorce, and death documentation for the Veteran and for the appellant's other husbands. Therefore, the available records and evidence have been obtained in order to make an adequate determination as to this claim. In this regard, the Board also finds that there has been substantial compliance with its February 2012 remand as the RO provided the appellant with the opportunity to identify or submit any additional pertinent evidence in support of her claim. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. The appellant claims VA death pension benefits, to include DIC benefits, as the surviving spouse of the Veteran, who died in January 1974. In particular, the appellant indicated that she and the Veteran (her second husband) were at one time married to one another. They subsequently divorced and remarried each other on more than one occasion during the Veteran's lifetime, but were separated at the time of the Veteran's death due to his alcohol abuse. Following the Veteran's death, the appellant remarried in June 1974 and July 1977. Her third marriage ended following divorce of her third husband, O. C. S., in July 1977. Her fourth marriage ended following the death of her fourth husband, D. W., in March 2005. The surviving spouse of a veteran of a period of war may be paid a pension as described by 38 U.S.C.A. § 1541 (West 2002). 38 C.F.R. § 3.3(b)(4) (2012). The period of war for World War II is identified as from December 7, 1941, through December 31, 1946, inclusive. If a veteran was in service on December 31, 1946, continuous service before July 26, 1947 is considered World War II service. 38 C.F.R. § 3.2(d) (2012). Death pension may be paid to a surviving spouse that was married to a veteran for: (1) one or more years prior to the veteran's death; or, (2) for any period of time if a child was born of the marriage or born to them before the marriage; or, (3) prior to the delimiting date, which in this case would be January 1, 1957, as the Veteran was a veteran of World War II. 38 U.S.C.A. § 1541(f) (West 2002); 38 C.F.R. § 3.54(a) (2012). The term "surviving spouse," except as provided in 38 C.F.R. § 3.52, means a person of the opposite sex whose marriage to the Veteran meets the requirements of 38 C.F.R. § 3.1(j) (2012), and who was the spouse of the Veteran at the time of the Veteran's death. 38 C.F.R. § 3.50(b) (2012). VA defines a "marriage" as a marriage valid under the law of the place where the parties resided at the time of marriage, or the laws 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). The surviving spouse of a veteran 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 that 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, a surviving spouse of a veteran must not have remarried or has not since the death of the Veteran and after September 19, 1962, 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 U.S.C.A. § 101(3) (West 2002); 38 C.F.R. § 3.50(b)(2). However, remarriage of a surviving spouse shall not bar the furnishing of benefits to the surviving spouse if the remarriage of the surviving spouse meets an exception outlined in 38 C.F.R. § 3.55 (2012). The remarriage of a surviving spouse shall not bar the furnishing of benefits to such surviving spouse if the marriage was void, or has been annulled by a court having basic authority to render annulment decrees, unless it is determined by VA that the annulment was obtained through fraud by either party or by collusion. 38 C.F.R. 3.55(a)(1). On or after January 1, 1971, remarriage of a surviving spouse terminated prior to November 1, 1990, or terminated by legal proceedings commenced prior to November 1, 1990, by an individual who, but for the remarriage, would be considered the surviving spouse, shall not bar the furnishing of benefits to such surviving spouse provided that the marriage has been terminated by death, or has been dissolved by a court with basic authority to render divorce decrees unless the Department of Veterans Affairs determines that the divorce was secured through fraud by the surviving spouse or by collusion. 38 C.F.R. 3.55(a)(2). On or after January 1, 1971, the fact that a surviving spouse has lived with another person and has held herself out openly to the public as a spouse of such other person shall not bar the furnishing of benefits to him or her after she terminates the relationship, if the relationship terminated prior to November 1, 1990. 38 C.F.R. 3.55(a)(5). On or after January 1, 1971, the fact that benefits to a surviving spouse may previously have been barred because her conduct or a relationship into which she had entered had raised an inference or presumption that she had remarried or had been determined to be open and notorious adulterous cohabitation, or similar conduct, shall not bar the furnishing of benefits to such surviving spouse after she terminates the conduct or relationship, if the relationship terminated prior to November 1, 1990. 38 C.F.R. 3.55(a)(8). A surviving spouse who remarried after the age of 55, but before December 6, 2002, may be eligible for benefits relating to medical care for survivors and dependents under 38 U.S.C. § 1781 pursuant to paragraph (a)(9)(i) only if the application for such benefits was received by VA before December 16, 2004. 38 C.F.R. 3.55(a)(9)(ii). A surviving spouse who remarried after the age of 57, but before December 16, 2003, may be eligible for dependency and indemnity compensation under 38 U.S.C. § 1311, medical care for survivors and dependents under 38 U.S.C. § 1781, educational assistance under 38 U.S.C. Chapter 35, or housing loans under 38 U.S.C. Chapter 37 pursuant to paragraph (a)(10)(i) only if the application for such benefits was received by VA before December 16, 2004. 38 C.F.R. 3.55(a)(10)(ii). Photocopies of documents necessary to establish birth, death, marriage or relationship under the provisions of 38 C.F.R. §§ 3.205 through 3.215 are acceptable as evidence if VA is satisfied that the copies are genuine and free from alteration. 38 C.F.R. § 3.204(c) (2012). On or after January 1, 1971, benefits may be resumed to an unmarried surviving spouse upon the filing of the application and submission of satisfactory evidence that the surviving spouse has ceased living with another person and holding herself out openly to the public as that person's spouse, or that the surviving spouse has terminated a relationship or conduct which had created an inference or presumption of remarriage or related to open or notorious adulterous cohabitation or similar conduct, if the relationship terminated prior to November 1, 1990. Such evidence may consist of, but is not limited to, the surviving spouse's statement of the fact. 38 C.F.R. § 3.215. By way of history, the appellant married her first husband, A. F. G., in August 1946, as shown in a photocopied marriage certificate of record. A decree of record detailed her divorce from A. F. G. in September 1947. A marriage certificate showed that the Veteran and the appellant were first married in April 1948. The appellant gave birth to their first daughter in January 1949, as shown in the birth certificate of record. A divorce decree reflected that the Veteran and the appellant divorced in November 1952, which became final in December 1952. An additional marriage certificate showed that the Veteran and the appellant remarried in March 1953. A birth certificate of record detailed that the appellant gave birth to their second daughter in February 1955. Letters in the file from the appellant and RO detailed that the Veteran and the appellant separated in May 1959 and reconciled in August 1959. However, a decree of record showed that they were again divorced in February 1966. The Veteran and the appellant remarried in January 1967, as reflected in a marriage certificate associated with the file. A February 1972 letter from the appellant to the President showed that she referred to herself as divorced. On a February 1973 VA Form 29-336, the Veteran listed his daughters as principal beneficiaries for his government life insurance policy. However, he did list his spouse as a contingent beneficiary if all principal beneficiaries (his daughters) preceded him. The Veteran's death certificate listed the immediate cause of his death as natural causes as well as listed his marital status as divorced. In an additional January 1974 letter, the medical examiner informed the coroner that he had reviewed the medical and police information submitted in reference to the Veteran. He opined that the Veteran's death occurred from natural causes due to obstructive chronic pulmonary disease, tuberculosis, and viral bronchitis with acute respiratory failure. The Veteran's eldest daughter filed a claim for burial benefits as well as for entitlement to service connection for the Veteran's cause of death in January 1974. In her claim, she marked that the Veteran's marital status was divorced. After she was initially denied benefits in January 1974, entitlement to service connection for the cause of the Veteran's death was established in a February 1974 rating decision. Evidence of record in the form of a photocopied marriage license reflected that the Veteran married her third husband, O. C. S., in June 1974. A certified copy of the original record showed that the appellant and O. C. S. were divorced in July 1977. A photocopied marriage license reflected that the Veteran married her fourth husband, D. W., later that month. A photocopied application for that marriage license detailed that the appellant had three prior husbands (one deceased and two divorces). Her fourth marriage ended with the death of D. W. in March 2005, as shown in photocopy of a death certificate of record. The appellant filed her current DIC claim in September 2007. According to the appellant, she and the Veteran were separated at the time of his death in January 1974 due to mental and physical abuse. She indicated that she remarried in July 1977 following the Veteran's death. This marriage ended following the death of her fourth husband, W. D., in March 2005. In the December 2007 rating decision currently on appeal, the RO determined that the appellant was eligible for Dependents' Educational Assistance benefits, effective January 4, 1974, as well as noted that entitlement to service connection for cause of death had been previously established in a February 1974 rating decision. In a December 2007 notice letter that accompanied the rating decision, the RO further determined that the appellant was not entitled to death benefits because she was not recognized as the surviving spouse of the Veteran, as evidence showed the appellant and the Veteran were divorced at his time of death. In her June 2008 notice of disagreement, the appellant explained that she had referred to herself as divorced in the February 1972 referenced above because she did not want the Veteran to receive any extra money for her as a dependent. She reported that she feared he would only spend it on alcohol, as they had separated due to his drinking problem. In June 2008, the appellant submitted a statement from the Georgia Department of Human Resources, Vital Records Branch, which certified that records from 1970 to 1974 were searched and showed no record of divorce or annulment for the appellant and the Veteran. That department also certified in a July 2008 letter of record that the appellant and the Veteran had divorced in February 1966 in Muscogee County, Georgia. In a November 2008 letter, the eldest daughter of the appellant and the Veteran asserted that her parents were married at the time of the Veteran's death. In the November 2009 statement of the case, the RO found that the appellant could not recognized as the surviving spouse of the Veteran. The RO determined that the appellant was not married to Veteran at the time of his death based on the evidence of record. It was indicated that a letter was sent to the Veteran on April 27, 1973, that included a VA Form 21-686 to complete and return to claim his dependents. The RO noted that dependency information was never received from the Veteran. Parenthetically, the Board notes that the letter sent to the Veteran on that date did not explicitly show that he was asked to clarify his dependents at that time. In her December 2009 substantive appeal, the appellant again asserted that she had separated from the Veteran in 1970, later saw a lawyer, and thought the Veteran had obtained a divorce. The RO again found that the appellant could not be recognized as the surviving spouse of the Veteran in the March 2010 supplemental statement of the case. In a March 2010 statement, the appellant reported that she married her fourth husband, W. D., on July 22, 1977, and that he had died on March 12, 2005. At that time, the appellant submitted a statement from the Clerk of the Superior Court of Muscogee County, Georgia, that reported that no evidence of divorce proceedings was found between the appellant and Veteran from 1967 to the present. In an August 2011 lay statement, a friend asserted that she had known the appellant for over 50 years and knew that the Veteran and the appellant were married at the time of his death in January 1974. In September 2011, the appellant sent in an amended copy of the Veteran's death certificate from August 2011 which showed the Veteran was marked as married as well as divorced at the time of his death in January 1974 and listed the appellant as his spouse. She also submitted a December 2009 statement from the Clerk of the Circuit Court of Russell County, Alabama, that reported that no evidence of divorce proceedings was found between the appellant and Veteran. She later presented a November 2011 statement from J. A. E., Esq., who indicated that his office records from January 1970 to January 1974 were destroyed, but that any divorce decree would have been on filed with the Muscogee Superior Court. During the November 2011 Board videoconference hearing, the appellant and her eldest daughter testified that the appellant and the Veteran were married, but separated at the time of his death. The daughter asserted that she had no knowledge of a divorce and reiterated that the Veteran had an alcohol problem. The appellant further testified that the Veteran's excessive drinking and abusive behavior necessitated the separation in 1970 prior to his death. It was also indicated that to her knowledge the Veteran did not marry anyone else while they were separated. As the evidence of record strongly suggested that the appellant and the Veteran were married, but separated at the time of his death in January 1974, the Board remanded this matter in February 2012 to afford the RO the opportunity to determine in the first instance the effect of the separation prior to the Veteran's January 1974 death, as well as the appellant's subsequent marriage to W. D. from July 1977 to March 2005, on whether the appellant may be recognized as the surviving spouse pursuant to 38 C.F.R. §§ 3.50(b)(1), (2), 3.55. In April 2012, the appellant submitted a certified copy of the Veteran's amended death certificate as well copies of marriage, death, and divorce documentation applicable to her first husband (A. F. G.), third husband (O. C. S.), and fourth husband (D. W.). The Board notes that those items of evidence have already been incorporated into the chronological presentation of the Veteran's marriage history discussed at length above. In an attached statement, she detailed that she separated from her third husband shortly after their marriage in 1974. She indicated that she remained married until she contacted him to obtain a divorce after she started dating her fourth husband in 1977. Although the appellant was asserted she married to the Veteran (for the last time) from January 1967 until the time of his death in January 1974, she has clearly conceded that that she was separated from him at some point between 1970 and his death 1974. However, she has also repeatedly contended that their separation was not due to her fault to the Veteran's own fault, as he mentally and physically abused her due to alcohol problems. There is no evidence of record to refute the appellant's contention regarding the reason for the separation. The Board is cognizant that the original death certificate for the Veteran as well as statements from the appellant and their eldest daughter showed that his marital status was characterized as divorced in 1973 and 1974. However, additional evidence submitted by the Veteran supports her assertions that they were still married at the time of his death, to include the certified copy of the Veteran's amended death certificate, the November 2011 hearing testimony of the appellant and her eldest daughter, additional lay assertions of record, the form showing the Veteran's assignment of beneficiaries on his 1973 life insurance policy, and certifications from multiple courts as well as a private attorney that no divorce decree was ever filed by the appellant or Veteran during the time period from their separation in 1970 until his death in January 1974. Resolving any doubt in her favor, the Board has determined that the appellant was still married to the Veteran at the time of his death based upon the evidence of record. However, the evidence showed that after the death of the Veteran, the appellant remarried twice. As a surviving spouse is defined by law as a person who has not remarried, her marriage to her second husband bars the appellant from eligibility for status as the Veteran's surviving spouse. 38 U.S.C.A. § 101(3) ("surviving spouse means . . . a person . . . who has not remarried"); 38 C.F.R. § 3.50(b)(2) (a surviving spouse means a person . . . who . . ., except as provided in 38 C.F.R. § 3.55, has not remarried). Thus, under the general definition of a surviving spouse, once the appellant married her second husband, she no longer had the status of a surviving spouse of the Veteran for purposes of VA benefits. The only exceptions to the aforementioned classification are those provided in 38 C.F.R. § 3.55, none of which the appellant in this case currently meets. In this case, neither of the appellant's subsequent marriages was void or annulled. 38 C.F.R. § 3.55(a)(1). While evidence shows that the appellant's third marriage to O. C. S. in June 1974 ended in divorce in July 1977, the appellant married her fourth husband (D. W.) just a few days later in July 1977 with that marriage ending with the death of D. W. in March 2005. 38 C.F.R. § 3.55(a)(2). Additionally, at the time of the appellant's marriages to her third husband, O. C. S., in 1974 and to her fourth husband, D. W., in 1977, she was not 55 years or older. 38 C.F.R. § 3.55(a)(9), (10). The law is dispositive of the issue on appeal, and the appellant's claim must be denied because of the absence of legal merit or entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Based on the undisputed facts of this case, the appellant cannot currently be recognized as the surviving spouse of the Veteran for purposes of establishing eligibility for VA benefits. Although the Board is sympathetic toward the appellant, it is bound by the law, and this decision is dictated by the relevant statutes and regulations. The Board is without authority to grant benefits simply because it might perceive the result to be equitable. 38 U.S.C.A. §§503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board further observes that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). ORDER Recognition of the appellant as the Veteran's surviving spouse for VA benefits purposes, to include entitlement to death pension and DIC benefits, is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs