Citation Nr: 1306986 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 06-19 243 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington THE ISSUE Whether the appellant may be recognized as the surviving spouse of the Veteran for the purpose of VA death benefits. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The Veteran served on active duty from January 1964 to January 1967, from March 1967 to October 1971, and from December 1971 to May 1975. He died in May 1997. The appellant seeks to establish that she is his surviving spouse (for VA death benefits purposes). This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2005 decision by the Seattle, Washington RO. In July 2008, a Travel Board hearing was held before a Veterans Law Judge who is no longer with the Board; a transcript of the hearing is included in the claims file. In September 2008, the Board remanded the matter for further evidentiary development. In January 2012, the RO notified the appellant by letter that she was entitled to a hearing before another Veterans Law Judge (who would decide her claim). She did not respond, and (as was noted in the letter) it is assumed that she does not desire another hearing.. The case was reassigned to the undersigned, who remanded the matter in March 2012 for further development. FINDINGS OF FACT 1. The appellant did not cohabit continuously with the Veteran from their marriage until his death; their separation is not shown to have been procured by, or due to misconduct of, the Veteran, or based on mutual consent for purposes of convenience, health, business, or any other reason that did not show an intent on the part of appellant to desert the Veteran. 2. After the separation of the appellant and the Veteran and prior to his death (and despite that they were not formally divorced) for a period of more than 5 years the appellant was married to/held herself out as married to another individual. CONCLUSION OF LAW The appellant is not entitled to recognition as the surviving spouse of the Veteran for purposes of VA death benefits. 38 U.S.C.A. §§ 101(3), 103 (West 2002); 38 C.F.R. §§ 3.50, 3.53 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) 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). When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2). In the event that a VA notice error occurs regarding the information or evidence necessary to substantiate a claim, VA bears the burden to show that the error was harmless. However, the appellant bears the burden of showing harm when not notified whether the necessary information or evidence is expected to be obtained by VA or provided by the appellant. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007) the U.S. Court of Appeals for Veterans Claims (Court) outlined the notice required in a claim seeking dependency and indemnity compensation (DIC) on the merits.. Here, a VCAA notice letter was sent to the appellant in July 2004. The letter advised the appellant of what is needed to substantiate a DIC claim. It did not provide a statement of the conditions for which the Veteran was service-connected at the time of his death. Regardless, as the appellant was advised of the criteria for establishing the threshold matter addressed herein, and as her claim is denied based on this threshold matter, she is not prejudiced by any technical deficiency in notice regarding the underlying claim. As this decision renders Hupp-compliant notice moot, any Hupp notice omission is harmless error. Therefore, the Board finds that adequate notice was provided to the appellant in compliance with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The RO has made requests to various public entities that were possible sources of information regarding the marriage of the Veteran and the appellant. The appellant provided written statements from herself and her children. She has not identified any additional evidence pertinent to the matter of whether she is the surviving spouse of the Veteran. The Board finds that no further assistance to the appellant in developing facts pertinent to her claim is required to comply with VA's duty to assist. B. Factual Background, Legal Criteria and Analysis The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each item of evidence. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence as appropriate. 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; 38 C.F.R. § 3.54. The term "surviving spouse" is defined as a person of the opposite sex who (1) was the lawful spouse of a veteran at the time of the Veteran's death, and (2) 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 fault of the spouse, and (3) who has not remarried. 38 C.F.R. § 3.50. 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. 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. 38 C.F.R. § 3.53(a). In determining whether there was continuous cohabitation, the statements of the surviving spouse as to the reason for the separation will be accepted in the absence of contradictory information. If the evidence establishes that the separation was either procured by the Veteran, or was by mutual consent and that the parties lived apart for purposes of convenience, health, business, or any other reason that did not show an 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); see also Alpough v. Nicholson, 490 F.3d 1352 (Fed. Cir. 2007). The Federal Circuit has stated that "a separation by mutual consent does not constitute desertion unless the separation resulted from misconduct or communication of a definite intent to end the marriage by the surviving spouse". See Alpough v. Nicholson, at 1357. The Alpough court found that a separation by mutual consent does constitute desertion under general family law principles if the "consent has been induced by the other spouse's misconduct or determination to end the marriage". 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). A marriage license in evidence reflects that the Veteran and the appellant were married in February 1966 in Charleston County, South Carolina. On an October 1979 claim for disability benefits, the Veteran indicated that he was divorced from the appellant, stating that the marriage was terminated in June 1973 in Cola, South Carolina. He listed two dependent children under 18 years of age, J.J.H. and J.W.H. On a February 1981 claim for disability benefits, the Veteran indicated that he was divorced from the appellant, stating that the marriage was terminated in August 1970 (though no place of termination was indicated). He again listed two dependent children, J.J.H. and J.W.H. On June 1982 VA psychiatric examination, the Veteran reported that he married in 1966 and divorced his wife in 1970 after his second tour "because of sexual misconduct. She had a guy living with her." He reported that he had two teenage sons who lived with their mother. On an October 1982 VA application for national service life insurance, the Veteran designated his beneficiaries as [redacted], described as his "fiancé", and [redacted], his mother, as one-half beneficiaries each. The sole contingent beneficiary was to be his sister, [redacted]. In a January 1983 statement in support of a claim for disability benefits, the Veteran stated that he had a "fiancé of over six years". On November 1984 VA psychiatric examination, the Veteran described himself as a divorced male. In December 1987, the Veteran submitted a letter to the Philadelphia RO indicating that he had received a Certificate of Renewal for his government life insurance policy, and he wished to change the beneficiary of the policy. He stated that the previous beneficiary was Joann Noonan and indicated that the new beneficiary would be [redacted]. A VA Designation of Beneficiary and Optional Settlement form for government life insurance, completed in February 1988 by the Veteran, designated [redacted] as his sole beneficiary; her relationship to the insured was described as "fiancé". A death certificate in evidence reflects that the Veteran died in May 1997. It was noted that he was divorced, and the "informant or source of information" for the death certificate was [redacted]. Following the notification to VA of the Veteran's death, the RO issued a June 1997 letter to Ms. [redacted] indicating that she had been named as the recipient of the government life insurance proceeds in the Veteran's latest beneficiary designation of record. A June 1997 VA "Claim for one sum payment" document reflects that Ms. [redacted], identifying herself as the Veteran's fiancé, sought settlement of the life insurance policy. A June 1997 VA Report of Status for settlement of death claims for government life insurance reflects that the Veteran died on May [redacted], 1997 and a $10,000 policy remained to be settled. In the "remarks" section of the document, a handwritten notation stated "[redacted], option 1, all". The insurance file contains a letter from the RO to Ms. [redacted] indicating that settlement of her claim for government life insurance had been authorized and her check was to be issued. In June 2004, the appellant submitted a claim for DIC benefits as the surviving spouse of the Veteran. She stated that she and the Veteran were married in February 1966 in Charleston, South Carolina, and that their marriage ended by the Veteran's death. She stated that she had been married one time and had not remarried since the death of the Veteran. She indicated that she had not lived continuously with the Veteran from the date of marriage to the date of death, stating as the cause of separation "desertion of wife and children". In a November 2004 statement, the appellant stated that the Veteran's contention that she was living with another man upon his return from Vietnam to South Carolina was untrue. She stated that, when he came home to her and their children, he was transferred away from them, and he said that he would be back. She stated that in 1971, he came back and was home for one week and then had to leave again, once more saying he would be back. She stated that that was the last time they saw him. She stated that she did not divorce him, as she wanted him to come back to his family. She stated that she had searched for any divorce papers filed in South Carolina and there were none. A November 2004 RO decision denied the appellant's claim for death benefits. A May 2005 RO letter to the Division of Vital Records of the South Carolina Department of Health and Environmental Control requested a certified copy of the public record of any divorce between the Veteran and the appellant from June 1973 in Cola, South Carolina. The response was that the state-wide index had been searched for the years 1970 through 1989 in accordance with the information that was provided, and such a record was not located. In a May 2005 statement, the appellant's daughter stated that, to the best of her knowledge, her parents (the appellant and the Veteran) never got divorced. She confirmed the Veteran's statement that he and the appellant, her mother, never divorced due to financial reasons, and stated that he had lied concerning his marital status to her mother. She stated that this information was related to her, her older brother [redacted], and to "all of the family" by her oldest brother after he returned from a visit to the Veteran. In a May 2005 statement, the appellant's (and the Veteran's) younger son stated that he did not remember his father well because his parents separated when he was very young. He stated that the Veteran only visited them twice. He stated that his older brother visited the Veteran in 1984 and, upon returning home, told him that their father said "he had lied all these years about getting divorced from Mom" because "it was too expensive and it didn't really matter because he never planned on marrying anybody else again anyway". In a June 2005 statement, the appellant stated that when her oldest son J.J.H. returned from his last visit with the Veteran in 1984, he told her that "his father admitted telling a lot of lies for many years: that he never divorced me, because he couldn't afford to, and didn't want to marry anyone ever again." She stated that she was told that if she wanted a divorce, she should file for it, but she never filed for divorce either. Regarding her return to the use of her maiden name, the appellant stated that the Veteran had "made it perfectly clear that he didn't want to recognize or acknowledge [her] or the children"; she saw no reason to continue using her married name and changed it in the spring of 1991. In July 2005, the RO sent a second letter to the Division of Vital Records of the South Carolina Department of Health and Environmental Control to request a certified copy of the public record of any divorce between the Veteran and the appellant from June 1973 in Cola, South Carolina. The response again was that the state-wide index had been searched for the years 1970 through 1989, and based on the information provided, a record was not located. A July 2005 RO administrative decision denied the appellant's claim, finding that she could not be established as the legal surviving spouse of the Veteran because she failed to meet the continuous cohabitation requirement of 38 CFR 3.50(b)(1). It was noted that both parties had evidence of record showing "mutual fault", not one more than the other, and that the appellant did not meet the criterion that "they were living apart at the time of the Veteran's death due to marital discord but that the claimant was not materially at fault in the separation." 38 CFR 3.53(3). In July 2005, the appellant contacted the Clerk of Court for Charleston County, South Carolina to request any record of documents filed in June 1973 for a divorce between her and the Veteran. The response was that there was no such record and it was not a Charleston County case. In a September 2005 statement, the appellant stated that she and the Veteran were never divorced. She stated that he was transferred away from her and their children and, in 1971 when he came home on leave, he told her that he would send for them as soon as he had housing set up for them. She stated that he never got housing for them, and she did not have the money or means to chase after him; she stated that he never came home to her and the children, thus deserting them. She contended that the separation was through no fault of hers. The record contains birth certificates for all three of the appellant's children with the Veteran, including the youngest child born in December 1971; the Veteran is listed as the father on all three birth certificates. However, the birth certificate for the child born in December 1971 was issued in March 2006 and includes her married surname, rather than either the Veteran's or the appellant's surnames. At the July 2008 Travel Board hearing, the appellant testified that she and the Veteran were married in February 1966 in Charleston, South Carolina. She testified that the Veteran raped her, resulting in the birth of her daughter, and she was not intimate with any other man at that time. She testified that she last saw the Veteran in 1971, at which time he told her he was going to school in Georgia because he had a field commission in Vietnam and needed training. She testified that she had had no contact with the Veteran since 1971. She testified that she remarried in 1980 because she was under the impression that she and the Veteran were divorced. She testified that her older son later briefly stayed with the Veteran but they did not get along, and when he returned he told her that the Veteran (his father) had lied about going through with a divorce because he could not afford it. She testified that, in 1985, she divorced the man she had married in 1980, and she did not remarry. In September 2008, the Board remanded the matter to obtain additional evidence. The Board noted that the evidence (including VA documents recognizing only two sons, and a statement from the appellant's daughter not recognizing the Veteran as her father) raised the issue of a dispute as to the Veteran's actual paternity of the appellant's daughter born in December 1971. The remand instructed that the appellant should provide outstanding documents including the original birth certificates for her children, a VA insurance change of beneficiary form dated August 1971, and copies of records demonstrating her marriage in 1980 and divorce in 1985; and the RO should obtain the Veteran's service personnel records and VA insurance claims file, and search for divorce records with the Clerk of Court for Richland County, South Carolina. Pursuant to the remand, the appellant submitted an August 1971 VA form in which the Veteran designated his 100 percent life insurance beneficiary as his "wife", the appellant. If there were no surviving spouse or child beneficiaries, the Veteran cited his mother as the contingent beneficiary. It was indicated that the location of the Veteran's will was "in wife's possession". She also submitted copies of her September 1980 certificate of marriage to M.M. as well as a copy of the March 1986 decree of dissolution of the marriage. The appellant submitted original birth certificates for her two sons yet submitted a duplicate of the birth certificate issued in March 2006 for her daughter, A.R.R. In a September 2008 email contact, an employee of the Richland County Clerk of Court, Civil Records, reported that she had searched the court's records from the years 1962 through 2008 and found no record of finalized divorce between the Veteran and the appellant in Richland County. In a December 2009 statement, the appellant indicated that she had been deemed the Veteran's surviving spouse by the Social Security Administration (SSA). In a March 2012 remand, the Board noted an October 2004 internet inquiry regarding SSA benefits, which indicated that the appellant was to receive SSA widow benefits for the month of December 2004. No further information, such as the name of the deceased spouse, is available in this limited document. The Board noted that in May 2005, the RO conducted an SSA inquiry regarding the appellant, which revealed that she was awarded SSA benefits from June 1994 (three years before the Veteran died) based on her own disability, beginning in October 1993. However, the SSA inquiry the RO conducted did not produce any further information regarding her SSA award of widow benefits. The Board remanded the matter in order to obtain copies of the SSA decision regarding the appellant's widow benefits and the documents underlying such decision. Pursuant to a records request, a May 2012 response from SSA indicated that the medical records requested had been destroyed. A May 2012 report of contact between the RO and SSA noted that the records for the Veteran as well as the appellant had been destroyed in June 2011. A May 2012 memorandum includes a finding of the file on the unavailability of the Veteran's SSA records. The threshold question that must be addressed in any claim for VA benefits is whether the person seeking the benefit is a proper claimant for the benefit sought. If the appellant is not established as a proper claimant, the claim can proceed no further. The appellant has the burden to establish her status as claimant. See Sandoval v. Brown, 7 Vet. App. 7, 9 (1994); citing Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). To establish that she is the Veteran's surviving spouse, the appellant must also show continuous cohabitation with the Veteran from their marriage until the Veteran's death, or if they did not cohabit, but were separated, that their separation was due to misconduct or by mutual consent (for purposes of convenience, business, or health), and with no intent on the part of the appellant to desert the Veteran. A clear preponderance of the evidence shows that she does not meet these requirements. The record shows that the appellant and the Veteran were legally married in February 1966. However, it also shows (and is not in dispute) that they did not cohabit continuously until he died in 1997. In fact, it shows that they did not cohabit for well in excess of 20 years before his death (the appellant acknowledges that they separated in 1971). The Board concedes that there is no evidence of a formal dissolution of the appellant's and the Veteran's marriage by a divorce decree; there is no reason to doubt the lay accounts that the Veteran had expressed to his son that he never sought a divorce because he lacked the financial resources to do so. There is conflicting evidence in the record regarding the reason for the initial separation of the Veteran and the appellant. A report of a psychiatric evaluation of the Veteran in June 1982 notes he related he divorced the appellant in 1970 because of her sexual misconduct (in that she "was living with a guy"). This evidence, by virtue of its clinical setting (with no motive for fabrication evident) merits at least some probative value. The appellant alleges to the contrary, i.e., that the Veteran deserted her and their children by not arranging for proper housing for them during and after deployment. Given the remoteness of the events, the conflict over the circumstances of the appellant's and the Veteran's initial separation might not be capable of resolution by clear evidence. However, the Board finds that fault in the initial separation of the Veteran and the appellant is rendered moot by the subsequent action of the appellant, as clear and convincing evidence otherwise clearly establishes an intent by the appellant to "desert" the Veteran. See 38 C.F.R. § 3.53(b). Specifically, the Board finds that the appellant's sworn testimony before the Board that in 1980 (while the Veteran was living) she married another person, remaining in such marriage for approximately 5 years (until that marriage was terminated by divorce) clearly reflects that she considered her marriage to the Veteran dissolved (and is an unequivocal manifestation of intent to "desert" him). Her remarriage to another person, and divorce from such person, are documented by copies of official records. Whether or not the actions were legally valid (or her remarriage was void because it was bigamous) is immaterial. They clearly signaled that she did not consider herself married to the Veteran (and an intent to "desert" him). Notably, the appellant has not alleged any attempt to re-establish her marriage to the Veteran once they separated (and particularly after she married another). As the Veteran and the appellant did not cohabit continuously and were not cohabiting at the time of his death and as there is no evidence that the Veteran and the appellant's separation falls into one of the exceptions to continuous cohabitation, the Board finds that the appellant cannot be considered to have met the requirements to establish that she is the Veteran's surviving spouse under the provisions of 38 U.S.C.A. § 101(3); 38 C.F.R. § 3.53(a). Therefore, she is not entitled to recognition as a claimant to establish entitlement to VA death benefits as the Veteran's surviving spouse. 38 C.F.R. § 3.50. As the preponderance of the evidence is against this claim, the appeal in this matter must be denied. . ORDER The appeal seeking to establish that the appellant is the Veteran's surviving spouse and thus a proper claimant for DIC benefits based on his service is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs