Citation Nr: 1312239 Decision Date: 04/12/13 Archive Date: 04/19/13 DOCKET NO. 09-44 054 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to recognition as the surviving spouse of the Veteran for the purpose of receiving VA death benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran served on active duty from December 1945 to September 1946. He died in July 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA), Philadelphia, Pennsylvania, Regional Office (RO) and Insurance Center that denied the benefit sought on appeal. The appellant submitted a notice of disagreement with this determination in September 2008, and timely perfected her appeal in November 2009. Jurisdiction of this matter is currently with the RO located in St. Petersburg, Florida. This matter was previously before the Board in September 2012 at which time it was remanded so that the appellant may be scheduled for a hearing over which a Veterans Law Judge of the Board would have presided. It is now returned to the Board. It is noted that Board hearings had been scheduled in February 2012 and May 2012, but had been cancelled due to the appellant's ailing health. Ultimately, a hearing was scheduled for February 2013, however, the appellant failed to appear for this hearing and, since that time, has not indicated that she wished to testify at another hearing. The Board, therefore, finds that she has withdrawn the request to testify before the Board. 38 C.F.R. § 20.704. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. 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 appellant and the Veteran were allegedly married in January 1957. 2. The Veteran died in July 1977; his Certificate of Death indicates that he was divorced and had no surviving spouse. 3. The appellant alleges that she and the Veteran had separated in 1970, but also alleges that she had married JP 1966. 4. At the time of the Veteran's death, the appellant and the Veteran were not living together, and the appellant was holding herself out openly to the public to be the spouse of JP. CONCLUSION OF LAW The criteria for entitlement to recognition as the surviving spouse of the Veteran for the purpose of VA death benefits have not been met. 38 U.S.C.A. §§ 101, 103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.5, 3.50, 3.53, 3.206 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice 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) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); C.F.R. § 3.159(b)(1) (2012). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, there are some claims to which VCAA does not apply. Livesay v. Principi, 15 Vet. App. 165, 178 (2001). It does not to apply to claims that turn on statutory interpretation, and the pertinent facts are not in dispute. Smith v. Gober, 14 Vet. App. 227, 231-2 (2000). During the drafting of the VCAA, Congress observed that it is important to balance the duty to assist against the futility of requiring VA to develop claims where there is no reasonable possibility that the assistance would substantiate the claim. For example, wartime service is a statutory requirement for VA pension benefits. Therefore, if a Veteran with only peacetime service sought pension, no level of assistance would help the Veteran prove the claim; and if VA were to spend time developing such a claim, some other Veteran's claim where assistance would be helpful would be delayed. 146 CONG. REC. S9212 (daily ed. Sept. 25, 2000) (statement of Senator Rockefeller). This appeal turns on statutory interpretation and the pertinent facts are not in dispute. See Smith, 14 Vet. App. at 231-2. Thus, because the law as mandated by statute, and not the evidence, is dispositive of this appeal, the VCAA is not applicable. Mason v. Principi, 16 Vet. App. 129 (2002). VA will refrain from providing assistance in obtaining evidence where the claimant is ineligible for the benefits sought because of lack of qualifying service, lack of Veteran status, or other lack of legal eligibility. 38 C.F.R. § 3.159(d). See VAOPGCPREC 5-2004. In this case, it is undisputed that the appellant and the Veteran were not engaged in continuous cohabitation when he died, that she had remarried to JP, and that, as a consequence, she is ineligible by operation of law and regulation to receive VA death benefits. The appellant has not contended that she continuously lived with the Veteran until the date of his death. While the fact of whether or not the Veteran and appellant had obtained a legal divorce is unclear, the fact that the appellant had been married to JP at the time of the Veteran's death renders the uncertainty moot. As such, no further action is required pursuant to the VCAA. Recognition as the surviving spouse of the Veteran A recognized marriage for VA purposes is defined as one which is valid under the law of the place where the parties resided at the time of 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) (2012). The term "spouse" means a person of the opposite sex whose marriage to the Veteran meets the requirements of 38 U.S.C.A. § 103(c); 38 C.F.R. § 3.1(j), which 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 right to benefits accrued. See 38 C.F.R. § 3.50(a) (2012). The term "surviving spouse" means a person of the opposite sex who was the spouse of a Veteran at the time of the Veteran's death and 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 who has not remarried or, in cases not involving remarriage, has not, since the death of the Veteran, lived with another person and held himself or herself out openly to the public to be the spouse of such other person. See 38 U.S.C.A. § 101(3); 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. 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) (2012). The statement 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 by mutual consent and that the parties lived apart for purposes of convenience, health, business, or any other reason which 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. 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. 38 C.F.R. § 3.53(b). The United States Court of Appeals for Veterans Claims (Court) has held that one claiming to be the spouse of a Veteran has the burden to come forward with preponderating evidence of a valid marriage under the laws of the appropriate jurisdiction. Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2012). The Veteran died in July 1977. The appellant asserts that she is the surviving spouse of the Veteran. On her application for death benefits and in subsequent correspondence, she alleged that she married the Veteran in Washington, DC, in the mid 1950's. She added that the Veteran had been abusive and violent, so that she left him in 1970. She also indicated that he did not contribute to her maintenance, but that his father did. She noted that she had remarried to JP. In an Application For Widow's or Widower's Insurance Benefits dated in October 2005 and submitted in support of her claim in July 2008, she reported that she and the Veteran were married on January 5, 1957, in Washington, DC, and that she had never divorced the Veteran, who she stated died in November 1977. She added that she married JP on March 5, 1966, while still married to the Veteran. The Veteran's Certificate of Death dated in July 1977, shows that the Veteran died in Washington, DC, in July 1977. It also shows that on the date of his death, he had been divorced with no surviving spouse. A review of the Veteran's claims file does not show any statement of dependency had ever been received from him during his lifetime. Although the Certificate of Death of the Veteran shows that on the date of his death, he had been divorced with no surviving spouse, there is no divorce decree of record, and the appellant has alleged that they had never been divorced. Nevertheless, the Board finds that the appellant does not meet the criteria as a surviving spouse for basic entitlement to death pension benefits because, as she conceded, she and the Veteran had been living apart at the time of his death, and she had married JP in 1966. Notwithstanding the fact that the date of marriage to JP (1966) predates the date provided by the appellant as that of her separation from the Veteran (1970), she remarried and had held herself out openly to the public to be the spouse of JP. Even if she had left the Veteran in 1970 because he had been abusive, and notwithstanding the fact that she presented no supporting evidence that the separation was due to misconduct or procured by the Veteran, she does not meet the criteria as a surviving spouse because she had been remarried at the time of the Veteran's death. The appellant has asserted that her marriage to JP had not been legal due to the fact that she was still married to the Veteran. However, regardless of the validity of the marriage to JP, the fact remains that the appellant held herself out openly to the public to be the spouse of JP, and even took on his last name as shown on her application for benefits. As set forth above, a surviving spouse must have lived with the Veteran continuously from the date of marriage to the date of his death (except where the separation was due to his misconduct), and who has not remarried or lived with another person and held herself out openly to the public to be the spouse of such other person. See 38 U.S.C.A. § 101(3); 38 C.F.R. § 3.50(b). These criteria are conjunctive, not disjunctive; thus all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334 (June 1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). In this case, while the fault of the reason for separation may be remain unclear, the appellant still had remarried (regardless of the validity of that marriage) and had held herself out to be the spouse of JP. Although sympathetic to the appellant's statements regarding her relationship with the Veteran prior to his death, the Board notes that in evaluating whether she is entitled to death pension benefits, only a "surviving spouse" may qualify for such benefits. At the time of the Veteran's death in 1977, the appellant had remarried. This is not in dispute. For this reason, the law prohibits the appellant from receiving benefits as the surviving spouse of the Veteran. In light of the foregoing, the law does not recognize the appellant as a surviving spouse of the Veteran for the purpose of VA benefits. As the law and not the evidence of record is dispositive in this case, the claim must be denied because of the lack of legal entitlement under the law. See Sabonis, 6 Vet. App. at 430. ORDER Recognition as the surviving spouse of the Veteran for the purpose of receiving VA death benefits is denied. ____________________________________________ J.A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs