Citation Nr: 1314296 Decision Date: 05/01/13 Archive Date: 05/15/13 DOCKET NO. 09-25 192 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Whether the appellant may be recognized as the surviving spouse of the Veteran for the purpose of basic eligibility to death benefits. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant along with a son and daughter ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The Veteran served on active duty from November 1942 to June 1943. He died in June 1992. The appellant seeks recognition as the Veteran's surviving spouse for the purpose of eligibility to receive VA death benefits. This appeal comes before the Board of Veterans' Appeals, hereinafter the Board, from a July 1992 administrative decision of the Department of Veterans Affairs (VA), Albuquerque, New Mexico, Regional Office (RO), that determined that the appellant was not the Veteran's surviving spouse as continuous cohabitation between the Veteran and appellant was not established from the date of marriage to the date of the Veteran's death. The appellant subsequently disagreed with that decision but a statement of the case (SOC) was not issued. The claim; therefore remained pending. Bradley v. Peake, 22 Vet. App. 280 (2008). The appellant then submitted another claim for benefits in November 2007, and once again the claim was denied. Another notice of disagreement was proffered by the appellant and at that time, the RO sent the appellant a SOC. She responded to that SOC with a substantive appeal. In March 2010, the appellant, along with her son and daughter, provided testimony before a Decision Review Officer (DRO) at the RO. A transcript of the hearing was prepared and has been included in the claims folder for review. FINDINGS OF FACT 1. The Veteran and the appellant were married in January 1947. 2. By the early 1960s, the appellant and the Veteran were separated due to misconduct of the Veteran. 3. The Veteran died in June 1992. The Veteran's Certificate of Death indicated that he was married at the time of his death. 4. Subsequent to the Veteran's death, the appellant held herself out as married to another person. CONCLUSION OF LAW The criteria have not been met for recognition of the appellant as the surviving spouse of the Veteran for purposes of basic eligibility to death benefits. 38 U.S.C.A. §§ 101(3), 103, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1(j), 3.50, 3.53, 3.159 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The United States Court of Appeals for Veterans Claims (Court) that the Veterans Claims Assistance Act of 2000 (VCAA) is not applicable to claims involving statutory interpretation. See Livesay v. Principi, 15 Vet. App. 165 (2001); see also Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (holding that the VCAA does not affect matters on appeal when the issue is limited to statutory interpretation). In this case the facts are not in dispute and the case turns on the application of the law to those facts. Consequently, the provisions of the VCAA, as well as VA's implementing regulations, are not applicable. Nevertheless, the Board notes that the appellant has had an opportunity to appear at an RO hearing and has presented evidence and argument in an attempt to substantiate her claim. The United States Court of Appeals for Veterans Claims has interpreted the provisions of 38 C.F.R. § 3.103(c)(2) as imposing two distinct duties on VA employees in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). At the appellant's hearing the issues were identified. There was a discussion of possible evidence that could substantiate that she had been forced to leave the Veteran due to his misconduct. The decision review officer did not discuss the question of whether there could be evidence on the element of the appellant having held herself out as married to another person after the Veteran's death. The appellant did; however, subsequently discuss this question, and the January 2013, supplemental statement of the case explained that the basis for the denial was that she had held herself out as married to another person. These actions provided notice as to the basis for the denials and the elements of the claim upon which notice was needed. The appellant's discussion of her marital status and circumstances shows that she had actual knowledge of the need for evidence to substantiate this element of the claim. In January 2013 the RO also reopened the appellant's claim and denied it on the merits. Hence, there is no prejudice in the Board considering her claim on the merits. Four years after the Veteran was discharged from service, he entered into marriage with the appellant. This occurred in New Mexico on January 7, 1947. Between 1947 and 1958, the appellant and the Veteran had five children. The appellant testified that during this period the Veteran started to drink and became abusive towards her and the children. The testimony of two of her children and statements from two acquaintances support her testimony. On or about the end of 1959 or the beginning of 1960, the appellant left the Veteran. She left because the Veteran was constantly drinking to excess, was not providing for his family, and was physically and mentally abusing her and the children. In October 1965, the Veteran was awarded a nonservice-connected pension. Shortly thereafter, the Veteran wrote to VA and stated that he and the appellant were separated and that the appellant had "left him". A reason for the appellant's leaving was not given by the Veteran. The record further indicates that the Veteran was paid at the single person rate with dependent children. He was not given compensation for his spouse. Within a couple of years of the awarding of the nonservice-connected pension, the Veteran was deemed to be incompetent and he was institutionalized. The Veteran remained institutionalized until his death in June 1992. Shortly after the Veteran's death, the appellant submitted a claim for VA death benefits. VA Form 21-534, Application for Dependency and Indemnity Compensation or Death Pension by a Surviving Spouse or Child (Including Accrued Benefits and Death Compensation, Where Applicable), June 29, 1992. On the form, the appellant used a last name that was different from that of the Veteran and from her maiden name. She has used this name on all documents submitted to VA and in her hearing testimony. She stated that she was separated from the Veteran. In Section 36 of the form, it was noted that a "live in boyfriend receives 290.00 monthly from Social Security." The claim remained dormant for over fifteen years until the appellant once again contacted the RO asking for benefits. Once again she stated, through her written statements and then through testimony at the RO, that she had left the Veteran because of his excessive drinking and abusive behavior. The appellant's son and daughter corroborated her position concerning the Veteran's action against their mother. The appellant also provided written statements from her friends concerning the Veteran's abusive behavior towards her while they were living together. Notwithstanding the above, the appellant was also asked to provide an explanation to the notation on the June 1992 claim for benefits, Section 36 of that form, that she had a "live in boyfriend receives 290.00 monthly from Social Security." The appellant responded with the following information: I had an off and on relationship with MS from 1969 - 1981 then from 1982-1997, he is no longer in the relationship with me. We were never married; I did change my last name verbally in order to cash his pay checks only. [His last name] was never my legal last name. My legal last name form 1947, when I married [the Veteran] was and is [a name that included the Veteran's last name]. I still sign [using the boyfriend's last name], due to hardship of changing back to my legal name. She signed the letter using the boyfriend's last name. A surviving spouse for VA purposes is defined as 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; 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 fault of the spouse; and (2) has not remarried or has not since the death of the veteran lived with another person of the opposite sex and held himself/herself out openly to the public to be the spouse of such other person. 38 C.F.R. §§ 3.50(b), 3.53 (2012). A surviving spouse may qualify for pension, compensation, or dependency and indemnity compensation under the appropriate circumstances. 38 C.F.R. § 3.54 (2012). However, the surviving spouse must be married to the veteran for a period of one year or more prior to the veteran's death. See 38 C.F.R. § 3.54(a)(1), (b)(2), and (c)(1)(ii) (2012). VA will accept, for the purpose of determining entitlement to benefits under laws administered by VA, the statement of a claimant as proof of marriage, dissolution of a marriage, birth of a child, or death of a dependent, provided that the statement contains: the date (month and year) and place of the event; the full name and relationship of the other person to the claimant. 38 U.S.C.A. § 5124(a), (b) (West 2002); 38 C.F.R. § 3.204(a)(1) (2012). VA shall require corroborating evidence to verify a marriage where: the claimant does not reside within a state; the claimant's statement on its face raises a question of its validity; the claimant's statement conflicts with other evidence of record; or, there is a reasonable indication, in the claimant's statement or otherwise, of fraud or misrepresentation of the relationship in question. 38 U.S.C.A. § 5124(c) (West 2002); 38 C.F.R. § 3.204(a)(2) (2012). Failure to furnish the higher class of evidence, however, does not preclude the acceptance of a lower class if the evidence furnished is sufficient to prove the point involved. 38 C.F.R. § 3.204(b) (2012). The appellant's statements, along with those of her children, concerning the treatment of the appellant by the Veteran when she was living with him to be credible and consistent with the available records. The Board believes the appellant when she claims that she needed to leave the marital home because the Veteran was beating and abusing her, and in essence committing misconduct upon another person. The Board further agrees with the appellant that she was legally married to the Veteran and that neither party had gotten a divorce from one another. However, during the time period that she was separated from the Veteran, the appellant cohabitated with another man. Per the appellant's written statements provided to the VA, she admitted that before and after the Veteran died, she lived with another person and adopted his last name. She has reported that she did so to ease financial transactions, implying that by using his last name she would leave the impression that she was his spouse. This is evidenced by the appellant's report that she cashed MS's paychecks, using his last name, as though she was married to him. The Veteran also used her boyfriend's last name in dealings with VA; thereby showing that her she used his name in situations that went beyond cashing checks. In short, she held herself out to the public to be the spouse of someone other than the Veteran. To be recognized as a surviving spouse, a claimant cannot have lived with a person of the opposite sex and held herself out as the spouse of that person since the death of the Veteran. 38 C.F.R. § 3.50(b). The appellant has acknowledged that she lived with her boyfriend, and as just discussed, held herself out as his spouse following the Veteran's death. The provisions of 38 C.F.R. §§ 3.50(b)(1) and (2) are conjunctive, not disjunctive. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). The appellant clearly met the requirements of 38 C.F.R. § 3.350(b)(1); but equally clearly did not meet the requirements of 38 C.F.R. § 3.50(b)(2). Accordingly, the Board concludes that the appellant does not meet the basic eligibility requirements for entitlement to VA benefits as the Veteran's surviving spouse. As such, entitlement to death benefits as the Veteran's surviving spouse must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994). ORDER The appellant is not entitled to recognition as the surviving spouse of the Veteran for the purpose of basic eligibility to death benefits; and the claim is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs