Citation Nr: 1315835 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 09-44 183 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to recognition as the surviving spouse of the Veteran for purposes of entitlement to Department of Veterans Affairs death benefits. WITNESSES AT HEARING ON APPEAL Appellant and her sister ATTORNEY FOR THE BOARD Stephanie Caucutt, Counsel INTRODUCTION The Veteran had honorable, active duty service from February 1968 to November 1977, as reflected in a March 1986 character of discharge determination. He died in August 2008 and his death has been deemed service-connected, as reflected in a June 2009 administrative decision. The appellant is seeking recognition as the Veteran's surviving spouse for death benefit purposes. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a June 2009 administrative decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. This determination recognized the appellee in this case, Barbara Carroll (hereinafter B.C.), as the Veteran's legal surviving spouse for purposes of entitlement to VA death benefits. The appellant appealed this decision. The appellant and her sister testified at a hearing before the undersigned Acting Veterans Law Judge in April 2011. A transcript of that proceeding is associated with the Veteran's claims file. In March 2012, the Board remanded this appeal for further development in accordance with the special procedures set forth for contested claims. The case was returned to the Board in February 2013. The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claims file. This file has been reviewed. FINDINGS OF FACT 1. The Veteran married the appellee, B.C., in November 1989. 2. The appellee attempted to divorce the Veteran in July 1995, but there is no evidence currently of record that a final divorce decree was issued. 3. According to B.C., the reason for her separation from the Veteran was his change in religion; there is no indication that their separation was due to the misconduct of, or procured by, the Veteran without the fault of the appellee. 4. In January 2003, the Veteran married the appellant, L.A.S. 5. The appellant was unaware at the time she entered her marriage to the Veteran that his prior marriage to B.C. had not been dissolved through divorce or annulled. 6. The appellant cohabitated continuously with the Veteran from the date of their marriage to the date of his death. 7. The appellant's marriage to the Veteran may be deemed valid as evidence fails to demonstrate that the appellee and the Veteran's separation was due to the misconduct of, or procured by, the Veteran, or was for purpose of convenience, health, business, or any other reason which did not show intent on the part of the surviving spouse to desert the Veteran, and the appellee did not cohabit with the Veteran until the date of his death. CONCLUSION OF LAW The appellant is recognized as the Veteran's lawful surviving spouse for VA death benefits purposes. 38 U.S.C.A. §§ 101, 103(a) (West 2002); 38 C.F.R. §§ 3.1, 3.50, 3.52, 3.53, 3.205 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met in this case. In this regard, both the appellant and the appellee were notified in December 2008 that there was a question as to who was the legal surviving spouse of the Veteran for purposes of entitlement to VA death benefits. This letter also notified both claimants of the need to submit additional evidence to support their claim for recognition as the Veteran's surviving spouse and provided specific notice as to what evidence and information was needed to establish entitlement to the benefit sought. The Board acknowledges that the December 2008 letter did not explicitly address what evidence would be obtained by whom (i.e., VA or the claimant). Nevertheless, the Board finds such error to be nonprejudicial to either claimant because none of the evidence identified by VA as relevant to the appeal could have been obtained by VA without either claimant's permission. As the December 2008 letter specifically informed both claimants that they should contact VA should they desire assistance in obtaining evidence to establish their claim, the Board concludes that the notice provided was sufficient to meet VA's requirements under 38 U.S.C.A. § 5103. Pursuant to the Board's March 2012 remand, VA also ensured that the special procedural requirements for simultaneously contested claims were followed. See 38 C.F.R. §§ 19.100, 19.101, and 19.102 (2012). Specifically, the RO provided both parties (the appellant and the appellee) with appropriate notices and determinations related to the contested claim, and advised both parties of the applicable law and regulations. The appeal was most recently readjudicated in a December supplemental statement of the case. With regard to the development of the claim, all known and available records relevant to the issue on appeal have been obtained and associated with the claims file, and neither party has contended otherwise. VA afforded both parties the opportunity to meaningfully participate in the adjudication of the appeal. See Washington v. Nicholson, 21 Vet. App. 191 (2007). The Board therefore concludes that neither the appellant nor the appellee is prejudiced by a decision on the claim at this time. Merits of the Appeal Historically, the Veteran died in August 2008. Later that same month, both the appellant and the appellee filed a claim for Dependency and Indemnity Compensation (DIC) benefits. By a June 2009 administrative decision, the RO recognized the appellee, B.C., as the Veteran's legal surviving spouse for purposes of entitlement to VA benefits, including DIC. Thereafter, the appellant filed a notice of disagreement with this decision and this appeal ensued. In order to be entitled to VA or death benefits as a 'surviving spouse' of a veteran, a claimant must be 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); 38 C.F.R. § 3.50(b). An exception to the provisions of a valid marriage is when an attempted marriage of a claimant to the veteran was invalid by reason of a legal impediment but nevertheless may be deemed valid. 38 U.S.C.A. § 103(a); 38 C.F.R. § 3.52. A marriage will be deemed valid if: (a) the marriage occurred one year or more before the veteran died or existed for any period of time if a child was born of the purported marriage or was born to them before such marriage; (b) the claimant entered into the marriage without knowledge of the impediment; (c) the claimant cohabited with the veteran continuously from the date of the marriage to the date of his or her death; and (d) no claim has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits other than accrued monthly benefits covering a period prior to the veteran's death. Id.; see also 38 C.F.R. § 3.205(c). In this case, the record contains a marriage certificate indicating the Veteran married the appellee, B.C., in November 1989. A marriage certificate is also of record showing that he married the appellant, L.A.S., in January 2003. A marriage license associated with the former certificate indicates that the Veteran had one prior marriage that was dissolved through a no-fault divorce in August 1974. There is no marriage license of record pertaining to the Veteran's marriage to the appellant. In support of her claim, the appellant submitted a copy of a Complaint in Divorce filed by the appellee against the Veteran in Philadelphia's Court of Common Pleas in July 1995. It does not appear, however, that the divorce proceedings between the Veteran and the appellee were ever finalized. In this regard, the record also contains notes from the Medical Examiner involved in the Veteran's death which indicate that while the Philadelphia Prothonotary Office had records showing that divorce proceedings were started, there was no evidence that a final decree was ever issued. In the absence of a final divorce decree, it appears that the appellee and the Veteran remained legally married until his death in August 2008 and the appellant's marriage to the Veteran was not a valid marriage pursuant to 38 C.F.R. § 3.50. See 38 C.F.R. § 3.206 (2012). Nevertheless, the appellant has indicated that she was unaware that the Veteran was still married to the appellee when she entered into a marriage with him in January 2003. She does not contend that she was unaware of the Veteran's prior marriage to the appellee, but instead asserts that she was under the impression that the marriage had been dissolved through a divorce. This impression is consistent with the evidence of record, as the Veteran sought to add the appellant and her dependent child to his award prior to his death. Furthermore, the daughter of the Veteran and the appellee submitted a notarized statement in January 2009 indicating her belief that the Veteran and the appellee were divorced. A neighbor similarly submitted a statement indicating that the Veteran and the appellant held themselves out to be legally married and that there was no indication of a lingering connection to the appellee. In sum, it appears that the appellant entered into a marriage with the Veteran which, but for his prior marriage to the appellee, would have been valid under the state laws of Pennsylvania. Further, such marriage occurred more than one year before his death and it is evident that the appellant was unaware that the Veteran's marriage to the appellee had not been legally dissolved at the time she entered into the marriage. Finally, the appellant has credibly asserted that she cohabitated with the Veteran continuously from the date of marriage to the date of his death; the evidence of record, including multiple lay statements of record, supports that assertion. Given the foregoing, the central inquiry of this case is whether the Board may conclude that "no claim has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits other than accrued monthly benefits covering a period prior to the veteran's death." 38 C.F.R. § 3.52. If so, the appellant's marriage may be deemed valid and she may be recognized as the Veteran's surviving spouse for VA benefit purposes. 38 C.F.R. § 3.52. As noted above, the appellee was previously found by the RO to be the Veteran's surviving spouse despite the fact that she did not continuously cohabit with him from the date of marriage to the date of his death. See 38 U.S.C.A. § 101(3); 38 C.F.R. § 3.50(b). Thus, the RO must have determined that one of two exceptions applied, allowing it to recognize the appellee as the Veteran's surviving spouse. First, the requirement of continuous cohabitation 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). Alternatively, 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 appellee reported on her August 2008 application for DIC benefits that she and the Veteran were separated during their marriage because of his conversion to the religion of Islam. Such statement is corroborated by an October 1997 VA mental hygiene intake report which reflects that the Veteran reported his third marriage ended because his wife was too young and there were religious differences. The appellee has not asserted any other reason for their separation and the evidence of record fails to indicate another reason. In this case, the Board finds that the appellee's separation from the Veteran does not meet one of the exceptions discussed above. In this regard, the aforementioned July 1995 Complaint in Divorce clearly indicates that the separation was not procured by the Veteran, but instead was initiated by the appellee. Moreover, the reason for the separation - the Veteran's conversion to the religion of Islam - is not, on its face, misconduct by the Veteran. Additionally, as the appellee filed for divorce, to the extent there is any "fault", it is hers. Finally, the fact that the Veteran and the appellee did not remain in contact following their separation weighs heavily against the conclusion that such separation was for purposes of convenience, health, business, or any other reason which did not show intent on the part of B.C. to desert the Veteran. Thus, the Board finds that no exception applies. Absent a finding that one of the 38 C.F.R. § 3.53 exceptions apply, the appellee may not be recognized as the valid surviving spouse of the Veteran because she did not cohabit with him until the date of his death. See 38 U.S.C.A. § 101(3); 38 C.F.R. § 3.50(b). If the appellee is not entitled to recognition as the surviving spouse, then there is no claim filed by a legal surviving spouse other than the appellant, as her marriage meets all of the criteria for a deemed valid marriage. As such, this appeal may be granted and the appellant will be recognized as the Veteran's surviving spouse for purposes of VA death benefits. See 38 C.F.R. § 3.52. ORDER The appellant is entitled to recognition as the Veteran's surviving spouse for purposes of entitlement to VA death benefits. ____________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs