Citation Nr: 1302174 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 09-26 008 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to recognition as the Veteran's surviving spouse for the purpose of obtaining Department of Veterans Affairs benefits. REPRESENTATION Appellant represented by: Jonathan Mark Bruce, Esq. ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The Veteran served on active duty from May 1952 to April 1953 and was killed in action during the Korean Conflict in April 1953. The appellant in this matter seeks recognition as the Veteran's surviving spouse for purpose of obtaining benefits. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 administrative decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, denying entitlement to VA death benefits on the basis that the appellant and the Veteran were divorced. In August 2010, the Board remanded this case for further evidentiary development. In an April 2011 decision, the Board denied the appellant's claim of entitlement to recognition as the Veteran's surviving spouse for VA benefits purposes. The appellant appealed the Board's decision. In a September 2012 Memorandum Decision, the United States Court of Appeals for Veterans Claims (Court) vacated the Board's April 2011 decision, and remanded the claim for readjudication consistent with the Court's Memorandum Decision. Please note 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). FINDING OF FACT The appellant and the Veteran were divorced prior to his death. CONCLUSION OF LAW The requirements for recognition as the Veteran's surviving spouse for purposes of establishing entitlement to VA benefits have not been met. 38 U.S.C.A. §§ 101(3), 1102, 1304, 1541, 5124 (West 2002); 38 C.F.R. §§ 3.1(j), 3.50, 3.52, 3.53, 3.54, 3.204, 3.205 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In June 2008, the appellant filed an application for Dependency and Indemnity Compensation (DIC), Death Pension, and Accrued Benefits by a Surviving Spouse based on her claimed status as the surviving spouse of the Veteran. The appellant contends that she and the Veteran were married in June 1949 and remained married living continuously together until the time of his death in April 1953. Likewise, she disputes the evidence of record which indicates that she and the Veteran were divorced in November 1952 prior to his death. DIC and death pension benefits may be paid to the surviving spouse of a Veteran in certain circumstances. For VA purposes, a "surviving spouse" means a person of the opposite sex whose marriage to the Veteran meets the requirements of 38 C.F.R. § 3.1(j) and who was the spouse of the Veteran at the time of the Veteran's death and: (1) 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 (2) except as provided in § 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 himself or herself out openly to the public to be the spouse of such other person. 38 C.F.R. § 3.50(b) (2012). Remarriage of a surviving spouse shall not bar the furnishing of benefits if the remarriage has been terminated by death. 38 C.F.R. § 3.55(a)(2)(i) (2012). The record includes a marriage certificate establishing that the Veteran and the appellant were married in Aibonito, Puerto Rico, in June 1949. The record does not contain a copy of a divorce decree between the Veteran and the appellant, although there is the equivalent of a docket sheet pertaining to those proceedings. The appellant has consistently maintained that she and the Veteran were never divorced. The record establishes that the Veteran had two children with another woman (V.C.), born in August 1951 and December 1952. (The appellant, in an October 2012 affidavit, claimed that she never knew about such infidelity or that the Veteran had V.C.'s sons until his death.) On a May 1952 DA Form 41-1, just before beginning his period of active duty service, the Veteran designated his mother and first son as his beneficiaries for servicemen's indemnity in the event of his death; he did not mention the appellant at all on this form. The April 1953 report of the Veteran's death contains confusing information for evidentiary purposes. V.C. was listed as the emergency addressee, with her relationship to the Veteran categorized as a friend. The appellant was listed as the beneficiary and wife; however, it was stated that she (the appellant) had the same address as the emergency addressee (i.e., V.C.). The Veteran's son was listed as the alternate beneficiary, and it was noted that he had the same address as the wife (i.e., the appellant). The Board cannot reconcile how the appellant, V.C., and the Veteran's son could have all had the same address at the time of the Veteran's death, when the appellant has claimed to have had no knowledge of the Veteran's relationship with V.C. or their sons until after the Veteran died. Therefore, the Board finds that the above information in this service report is entitled to little probative weight. The Veteran's other service records have been found to be "fire-related" and therefore they cannot be obtained for clarification. In a June 1953 deposition (translated from Spanish), V.C. asserted that the Veteran had been living "maritally" with her since over two years ago, but she acknowledged that she was not married to the Veteran. V.C. stated that the Veteran had previously been married to the appellant, but that they did not live together long and that he was divorced from her in November 1952 in Caguas, Puerto Rico. In July 1953, V.C. filed an application for DIC benefits on behalf of her two children with the Veteran, and she noted in the application that the Veteran's marriage to the appellant had ended in divorce in November 1952 in Caguas, Puerto Rico. In a June 1953 affidavit, the Veteran's father stated that the Veteran had been married to the appellant, but that the Veteran had divorced her in November 1952 in Caguas and was living with V.C. in common-law marriage. In June 1953 affidavits from two neighbors of the Veteran's parents, it was stated that the veteran had been married to the appellant whom he divorced in Caguas P.R. The Board notes that DIC benefits were only awarded to the Veteran's sons (the children he had by V.C.) and his parents, and never to the appellant at any time. The appellant did not file any claims for DIC benefits until the current claim was filed in June 2008. The record establishes that the appellant married another man in June 1980, and that this man died in May 2008. (As this remarriage was terminated by death, the appellant would not be barred from getting DIC benefits solely on the grounds of having remarried after the Veteran's death. See 38 C.F.R. § 3.55(a)(2)(i).) In June 2008, approximately one month after her second husband's death, the appellant filed her current claim for DIC benefits for the death of her first husband (i.e., the Veteran). On an accompanying VA Form 21-534a in August 2008, the appellant stated that there were no children of the deceased Veteran. The appellant contends that the lack of a divorce decree establishes that she and the Veteran were still married at the time of his death in April 1953. In September 2010, VA contacted the Caguas Superior Court in Puerto Rico and requested copies of any records pertaining to a divorce between the appellant and the Veteran. A September 2010 response indicated that records for the year 1952 had been destroyed. However, the Caguas Superior Court did provide a Civil Matters Registry document (translated from Spanish) regarding a divorce between the appellant (listed as the plaintiff) and the Veteran (listed as the defendant). The timeline on this document reflects that an action was initially filed in May 1952, and concluded with a judgment/ruling in November 1952, with judgment/ruling notification letters issued in December 1952. In a September 2010 statement, the appellant asserted that "somebody" who she did not know tried to submit a divorce claim in 1952, but she stated that it was not her, because at that time she could not have filed court documents as she was only 16 years old and could not read or write. She alleged that the court told her that there was never a resolution to this false claim. In an August 2011 informal brief, the appellant asserted that the Veteran's relatives were against her marriage to the Veteran and that they lied to VA officials to deprive her of her DIC benefits. The Board finds that the preponderance of the evidence establishes that the appellant and the Veteran were not married at the time of his death in April 1953. While a copy of a divorce decree between the Veteran and the appellant could not be obtained (as the Caguas Superior Court stated that all such records for the year 1952 had been destroyed), the record does contain the Civil Matters Registry document from the Caguas Superior Court regarding a divorce between the appellant and the Veteran which reflects that a judgment/ruling was issued in November 1952. The occurrence of such a divorce is supported by a great deal of corroborative evidence. In this regard, V.C.'s June 1953 deposition, V.C.'s July 1953 application for DIC benefits on behalf of her two children with the Veteran, and the Veteran's father's January 1954 affidavit all asserted that the Veteran and the appellant had divorced in November 1952 in Caguas, Puerto Rico. The Board acknowledges that neither V.C. nor the Veteran's father claimed to have been present at the divorce proceedings, observed a divorce decree, or had firsthand knowledge of the divorce. However, they could have easily learned of the divorce by communications with either the Veteran or the appellant herself. It is common for a father to be aware of his son's marital status. In addition, the fact that V.C. bore two children with the Veteran suggests that they had an intimate relationship, and it seems logical that she also would have been kept apprised by the Veteran of his marital status. Moreover, their assertions of a divorce between the Veteran and the appellant in November 1952 are consistent with the timeline contained in the Civil Matters Registry document outlined above. As to the appellant's assertion that she could not have obtained a divorce at age 16, the Board finds this to be unconvincing. The Board notes that the marriage certificate indicates that she was age 16 on the date of marriage in June 1949, and therefore would have been age 19 at the time of the divorce in 1952. The Board has noted that the appellant has now reported a different birth date than what was noted on the marriage certificate, and this suggests that she would have been age 13 at the time of marriage and age 16 on the date of divorce. Regardless, the Board is unconvinced that she would have been unable to procure a divorce given that she had managed to become married a full three years earlier. If she was willing to report an inaccurate age at the time she got married, it seems likely that she would have been willing to do so again if necessary in order to obtain a divorce. Regarding her argument that she could not have obtained a divorce because she could not read or write at that time, the Board notes that she could have obtained assistance from someone else in order to file any necessary paperwork, so that argument is not valid. The Board finds the appellant's assertions that the divorce action was filed by some sort of impersonator to be incredible. The Board notes that the appellant would have had a logical reason for filing for divorce at that time given that the record clearly establishes that the Veteran had entered into a relationship with another woman resulting in the other woman bearing one child and having a second pregnancy. A divorce action filed by the appellant for this reason seems much more likely than a conspiracy to obtain a false divorce involving the Veteran's father and V.C. The Board further notes that the appellant's failure to file a claim for DIC benefits on her own behalf until many years after the Veteran's death is further corroboration that she did not remain married to him prior to his death. The Board reiterates that the appellant did not seek DIC benefits until June 2008, more than 55 years after the Veteran's death in April 1953, and approximately one month after her second husband's death in May 2008. The Board further finds that the appellant's credibility is diminished by the fact that she stands to gain money by denying the occurrence of the divorce. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (holding that interest in the outcome of a proceeding may affect the credibility of testimony). Furthermore, the appellant's contentions that she and the Veteran remained married living continuously together until the time of his death in April 1953 are contradicted by the other evidence of record. In her June 1953 deposition, V.C. asserted that she and the Veteran had been living "maritally" for over two years and that the Veteran and the appellant did not live together long. In his affidavit, the Veteran's father stated that the Veteran was living with V.C. in common-law marriage. The neighbors reported a similar account. In summary¸ the appellant fails to meet the definition of a "surviving spouse" for VA purposes because the preponderance of the evidence establishes that she was not the spouse of the Veteran at the time of the Veteran's death. See 38 C.F.R. § 3.50(b). The weight of the evidence shows that the appellant and the Veteran were divorced prior to his death. The criteria for entitlement to recognition as the Veteran's surviving spouse for the purpose of establishing entitlement to VA benefits have not been met, and the claim must be denied. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) defined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the appellant in a July 2008 letter. As the claim on appeal is being denied, notice regarding the disability rating and effective date elements of the DIC claim are not required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The United States Court of Appeals for Veterans Claims (Court) has held that 38 U.S.C.A. § 5103(a) requires that compliant VCAA notice, in the context of DIC claims, requires (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 (2007). The appellant was provided notice that complied with Hupp in the July 2008 VCAA letter. VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to her claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the appellant, and has made efforts to obtain any other records that could support her claim. In compliance with the August 2010 Board remand, VA contacted the Superior Court in Caguas, Puerto Rico, and requested copies of records pertaining to a divorce between the appellant and the Veteran. A September 2010 response from the Caguas court indicated that records dating from the requested year had been destroyed and were not transferred to microfilm. The appellant's claim was then readjudicated in a March 2011 supplemental statement of the case. The Board therefore finds that VA has complied with the August 2010 remand orders and the VCAA's notification and assistance requirements. ORDER Entitlement to recognition as the Veteran's surviving spouse for VA benefits is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs