Citation Nr: 1301937 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 11-14 874 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUE Entitlement to recognition as the Veteran's surviving spouse. WITNESSES AT HEARING ON APPEAL The appellant and B.J. ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran had active military service from April 1952 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied entitlement to Dependency and Indemnity Compensation (DIC) on the basis that the appellant is not the deceased Veteran's surviving spouse. The appellant appointed a veterans service organization (VSO) as her representative in September 2010. In June 2011, the VSO revoked the representation. In September 2011, the appellant submitted a letter from a private attorney who indicated that he was "assisting" the appellant. By a May 2012 letter, the Anchorage RO informed the appellant that the private attorney was not recognized as her representative because a valid power of attorney must be submitted (such as VA Form 21-22). Thereafter, in July 2012, the appellant testified at a hearing before the Board. At the hearing, she acknowledged that she was proceeding without representation. Thus, the appellant is considered to be self-represented in this case. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran and the appellant married in September 1953. 2. The Veteran died in February 1970. 3. There is no divorce decree of record. 4. There was no continuous cohabitation of the Veteran and the appellant from the time of marriage until the time of the Veteran's death. CONCLUSION OF LAW The criteria for recognition of the appellant as the Veteran's surviving spouse have not been met. 38 U.S.C.A. §§ 101, 103, 1102 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.50, 3.53, 3.54, 3.206 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate claims for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012). The Board notes that with respect to the appellant's claim, the determinative facts in this case are not in dispute. In Manning v. Principi, 16 Vet. App. 534 (2002), citing Livesay v. Principi, 15 Vet. App. 165 (2001), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA has no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter. The Board finds that such is the case as to the issue here on appeal. Application of pertinent provisions of the law and regulations will determine the outcome. No amount of additional evidentiary development would change the outcome of the claim; therefore no VCAA notice is necessary. See also Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) and Mason v. Principi, 16 Vet. App. 129, 132 (2002) (VCAA not applicable "because the law as mandated by statute and not the evidence is dispositive of the claim"). The Board adds that general due process considerations have been satisfied. See 38 C.F.R. § 3.103 (2012). The appellant has been provided ample opportunity to present evidence and argument in support of her claim, and she has in fact done so, including by way of presenting testimony at a personal hearing before the Board. II. Legal Criteria Pertinent VA laws and regulations provide that 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 (West 2002); 38 C.F.R. § 3.54 (2012). Spouse means a person of the opposite sex who is a wife or husband and the term surviving spouse means a person of the opposite sex who is a widow or widower provided the marriage meets the requirements of 38 C.F.R. § 3.1(j). 38 C.F.R. § 3.50 (2012). A marriage 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 rights to benefits accrued." 38 U.S.C.A. § 103(c) (West 2002); 38 C.F.R. § 3.1(j) (2012). The term "surviving spouse" means a person of the opposite sex (1) whose marriage to the Veteran was valid under the law of the place of residence at the time of the marriage or when the right to benefits accrued; (2) who was the spouse of a Veteran at the time of the Veteran's death; (3) who lived with the Veteran continuously from the date of marriage to the date of the Veteran's death (i.e. continuous cohabitation); (4) and who, except as provided in 38 C.F.R. § 3.55, has not 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). 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. 38 C.F.R. § 3.53(a) (2012). In this regard, 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. 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. 38 C.F.R. § 3.53(b). The statement of the surviving spouse as to the reason for the separation will be accepted in the absence of contradictory information. 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. In Gregory v. Brown, 5 Vet. App. 108 (1993), the Court identified a two-part test to determine whether a spouse can be deemed to have continuously cohabited with a Veteran even if a separation has occurred. First, the spouse must be free of fault in the initial separation. Id. at 112. Second, the separation must have been procured by the Veteran or due to his misconduct, with the fault determination based on an analysis of the conduct at the time of separation. Id. The Court emphasized that the "without fault" requirement of the law was not a continuing one. Rather, fault, or the absence of fault, is to be determined based on an analysis of conduct at the time of separation. Id. However, 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. Still the mere acts of seeking divorce and failing to reconcile are not in and of themselves relevant to the question of fault, and, standing alone, do not constitute evidence of fault at the time of separation. Certainly, 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. In Alpough v. Nicholson, 490 F.3d 1352, 1357 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit (Federal Circuit) further clarified that separation by mutual consent generally does not constitute desertion by a potential surviving spouse, such that a claimant is exempted from the continuous cohabitation requirement under 38 C.F.R. § 3.53(b) for the purpose of establishing recognition as the surviving spouse for death benefits. The Federal Circuit explained that under a proper interpretation of 38 U.S.C.A. § 101(3), a spouse can qualify as a surviving spouse if a separation was procured by the Veteran without the fault of the surviving spouse, even if there was no misconduct by the Veteran. Id. Therefore, under a proper interpretation of section 3.53(b), a separation by mutual consent, without an intent to desert, does not break the continuity of cohabitation. Id. at 1358. However, the Federal Circuit added that a separation by mutual consent would constitute desertion if the separation was induced by misconduct or communication of a definite intent to end the marriage by the surviving spouse, thus, breaking the continuity of cohabitation and precluding surviving spouse recognition in such instance. Id. at 1357. III. Analysis The Veteran died in February 1970. In April 2010, the appellant submitted an application for DIC benefits as the Veteran's surviving spouse. In August 2010, the RO denied the appellant basic eligibility for DIC benefits on account of her not being the Veteran's surviving spouse. Through submitted statements and hearing testimony, the appellant asserts that she is the Veteran's surviving spouse as she was legally married to the Veteran and they were never divorced. She states that, although divorce papers were drawn up, the papers were never filed with a court. Thus, the appellant contends that she should be recognized as the surviving spouse because she was married to the Veteran at the time of his death. A review of the claims file reveals that the appellant was married to the Veteran in September 1953. A copy of the marriage certificate is of record. Additionally, an April 1970 application for DIC benefits submitted by the Veteran's mother lists the marriage of the Veteran and the appellant. Moreover, the Veteran's service records make reference to the appellant as his wife. Thus, the evidence shows that the appellant was married to the Veteran. As to the status of the marriage at the time of the Veteran's death, much of the evidence contemporary to the time of the Veteran's death reflects that he was divorced from the appellant. Although a September 1969 service treatment record notes that the Veteran's wife is in a mental institution, when the Veteran filed a claim of service connection in January 1970 shortly prior to his death, he did not list a wife. Significantly, his February 1970 death certificate lists his marital status as divorced. As well, in a March 1970 Report of Casualty, no wife was listed as a contact for the military. Only the Veteran's mother, daughter, and son were to be notified of his death. In the mother's April 1970 application, she listed the Veteran and appellant as divorced since July 1968. Of record is a May 1970 Report of Field Examination made by the Chief Attorney of the RO in Atlanta, Georgia, pertaining to fiduciary questions regarding the Veteran's life insurance proceeds. The Veteran's mother was contacted and interviewed. The attorney noted that the Veteran's mother appeared to be truthful. Among other things, the circumstances of the Veteran's marriage were discussed. The Veteran's mother indicated that there was family bitterness over the divorce because the Veteran was given custody of the minor children. The Veteran's mother also stated that the mother (appellant) remarried and moved to Texas but it was understood by the VA attorney that the appellant had since divorced her second husband and now was making an attempt to regain custody of the children. Notably, when the appellant submitted her April 2010 application, she indicated that her marriage to the Veteran ended in divorce. Although the appellant also indicated that she had not remarried since the death of the Veteran, she noted that she had been married twice. This circumstantial evidence tends to show that the Veteran and the appellant were divorced at the time of the Veteran's death. Even the appellant indicated they were divorced on her April 2010 application. Nevertheless, at the Board hearing, the appellant testified that divorce papers were drawn up in 1968 but they were never filed with a court. She conceded that she was going through the divorce process with the Veteran; however, the divorce was never finalized. In this case, despite a great amount of circumstantial evidence showing a divorce, a divorce decree is simply not of record. A divorce decree (or copy thereof) is the only acceptable documentary evidence for termination of a marriage when there is conflicting evidence. See 38 C.F.R. § 3.206 (2012); see also VA's Adjudication Procedures Manual, M21-1MR, Part III, Subpart iii, ch. 5, sec. B(8)(d) (2012). Here, the absence of a divorce decree works in the appellant's favor. Without one, the Board cannot conclude the appellant and the Veteran were divorced at the time of his death. Even though the appellant and the Veteran were not divorced at the time of his death, the evidence shows that the appellant did not live with the Veteran continuously from the date of marriage to the date of the Veteran's death (i.e. continuous cohabitation). See 38 C.F.R. §§ 3.50(b); 3.53. In her April 2010 application, the appellant expressly indicated that she did not live continuously with the Veteran from the date of marriage to the date of his death. Moreover, at the Board hearing, the appellant testified that she had not lived with the Veteran since at least 1966, which is approximately four years prior to his death. The appellant's own recollections of not cohabitating, along with the evidence contemporaneous to the Veteran's death reflecting that he was not living with the appellant, show that the appellant did not live with the Veteran continuously from the date of marriage to the date of the Veteran's death. Additionally, the evidence does not suggest that the separation was due to the misconduct of, or procured by, the Veteran. Moreover, the evidence does not suggest that the separation was merely one of mutual consent, such as for purposes of convenience, health, business, etc. It appears that both parties were separated with the purpose of intending to divorce, but the divorce was not accomplished. Thus, the circumstances set forth in Gregory or Alpough are not applicable. In view of the finding that the appellant did not live with the Veteran continuously from the date of marriage to the date of the Veteran's death, the Board concludes that the appellant may not be recognized as the surviving spouse. Thus, the appellant is not entitled to basic eligibility for her DIC claim and the appeal must be denied. ORDER The appellant is not the surviving spouse of the Veteran; the appeal is denied. ____________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs