Citation Nr: 1315922 Decision Date: 05/15/13 Archive Date: 05/15/13 DOCKET NO. 10-47 416 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Whether new and material evidence has been presented to reopen a claim of recognition as the surviving spouse of the Veteran for the purpose Department of Veterans Affairs (VA) death benefits, and if so, if recognition as the surviving spouse is warranted. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran had active service from June 1944 to June 1946. He died in February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. FINDINGS OF FACT 1. The Veteran and the appellant married in May 1949. 2. The Veteran and the appellant never divorced, but they lived apart prior to the Veteran's death in February 1970; the appellant last saw the Veteran in 1962. 3. During the period of time when the Veteran and the appellant, while married, but not residing together and following his death, the appellant lived with R.C., and used his last name as her own. 4. In August 1989, the appellant initially applied for VA death benefits. 5. In a March 1990 decision, the RO denied entitlement to VA death pension benefits on the basis that the appellant was not entitled to recognition as the surviving spouse of the Veteran because she was living with another man and was holding herself out as his wife. 6. The appellant did not appeal the March 1990 decision. 7. The appellant has not lived with another man after 1993. 8. Evidence received since the RO's March 1990 decision, by itself or when considered with previous evidence of record, relates to an unestablished fact. 9. The appellant did not live with the Veteran continuously from the date of marriage to the date of the Veteran's death. 10. The separation of the Veteran and the appellant was not due to the misconduct of, or procured by, the Veteran. 11. The appellant held herself out openly to the public as the spouse of R.C. while she was still married to the Veteran and after his death. CONCLUSIONS OF LAW 1. The RO's March 1990 decision which denied service connection entitlement to VA death pension benefits on the basis that the appellant was not entitled to recognition as the surviving spouse of the Veteran is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012). 2. New and material evidence has been received since the RO's March 1990 decision; thus, the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2011); 38 C.F.R. § 3.156 (2012). 3. The appellant may not be recognized as the Veteran's surviving spouse for purposes of entitlement to VA death benefits. 38 U.S.C.A. § 101 (West 1991 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.50 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the appellant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim, including apprising him or her of the information and evidence he or she is responsible for providing versus the information and evidence VA will obtain for him or her. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the appellant is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The appellant has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). VCAA letters were sent in July and September 2009. The letters, especially in combination, indicated the type of evidence and information needed to substantiate the claim and apprised the appellant of the appellant's and VA's respective responsibilities in obtaining this supporting evidence. Regarding the duty to assist, VA also satisfied this obligation in terms of obtaining all potentially relevant evidence concerning the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication that any additional evidence, relevant to this claim, is available and not part of the claims file. In summary, the Board finds that "it is difficult to discern what additional guidance VA could have provided to the appellant regarding what further evidence he should submit to substantiate his claim." See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the appellant). Surviving Spouse During his lifetime, the Veteran submitted a VA Form 8-686c, Declaration as to Marital Status, in 1949, in which he listed the appellant as his spouse. He also furnished a copy of their marriage certificate which showed that they were married in May 1949. The Veteran died in February 1970. On his Certificate of Death, it indicated that the Veteran had never been married and had no surviving spouse. Clearly this information cannot be deemed reliable as he was married in 1949 to the appellant. In August 1989, the appellant applied for VA death benefits. She explained that during their marriage, she and the Veteran lived with his parents for a while and had four children together. However, she had several instances where she was hospitalized for "breakdowns." Unfortunately, their children were eventually placed in foster care. The appellant indicated that when she was hospitalized for an extended period of time, the Veteran called her and reported that he had been working in another state. She was subsequently released and he also came to see her once at her employment, but could not offer any home for her and the children. She stated that the Veteran was an alcoholic who could not maintain steady employment. The appellant related that she last saw him in 1962 and did not learn of his death until 1972, two years after he died. She indicated that they never separated or divorced. She also stated that she lived with R.C. and used his last name. However, she recognized that they were not married and that the State of New York did not recognize common-law marriages. So, she basically indicated that she was not married and had never divorced the Veteran. The law provides that VA death benefits may be paid to a surviving spouse who was married to a veteran: (1) one year or more prior to a 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. Pursuant to applicable law and regulation, the term "spouse" means a person of the opposite sex whose marriage to the Veteran meets the requirements of 38 C.F.R. § 3.1(j) (2011). Except as provided in 38 C.F.R. § 3.52, "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) who was the spouse of the 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, 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. v38 C.F.R. § 3.50 (2012). For VA death benefits entitlement purposes, the veteran must have been married to the appellant for over one year or for any period of time if a child was born of the marriage. 38 C.F.R. § 3.54. For VA benefits purposes, a marriage means a marriage 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 C.F.R. § 3.1(j). Marriage is established by one of the following types of evidence: (1) Copy or abstract of the public record of marriage, or a copy of the church record of marriage, containing sufficient data to identify the parties, the date and place of marriage, and the number of prior marriages if shown on the official record. (2) Official report from service department as to marriage which occurred while the veteran was in service. (3) The affidavit of the clergyman or magistrate who officiated. (4) The original certificate of marriage, if VA is satisfied that it is genuine and free from alteration. (5) The affidavits or certified statements of two or more eyewitnesses to the ceremony. (6) In jurisdictions where marriages other than by ceremony are recognized the affidavits or certified statements of one or both of the parties to the marriage, if living, setting forth all of the facts and circumstances concerning the alleged marriage, such as the agreement between the parties at the beginning of their cohabitation, the period of cohabitation, places and dates of residences, and whether children were born as the result of the relationship. This evidence should be supplemented by affidavits or certified statements from two or more persons who know as the result of personal observation the reputed relationship which existed between the parties to the alleged marriage including the periods of cohabitation, places of residences, whether the parties held themselves out as married, and whether they were generally accepted as such in the communities in which they lived. (7) Any other secondary evidence which reasonably supports a belief by the Adjudicating activity that a valid marriage actually occurred. 38 C.F.R. § 3.205(a). In the absence of conflicting information, proof of marriage which meets the requirements of 38 C.F.R. § 3.205(a) together with the claimant's certified statement concerning the date, place and circumstances of dissolution of any prior marriage may be accepted as establishing a valid marriage, provided that such facts, if they were to be corroborated by record evidence, would warrant acceptance of the marriage as valid. 38 C.F.R. § 3.205(b). Where a surviving spouse has submitted proof of marriage in accordance with 38 C.F.R. § 3.205(a) and also meets the requirements of 38 C.F.R. § 3.52, the claimant's signed statement that she had no knowledge of an impediment to the marriage to the Veteran will be accepted, in the absence of information to the contrary, as proof of that fact. 38 C.F.R. § 3.205(c). For purposes of VA benefits, a marriage means a marriage valid under 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. 38 C.F.R. §103(c); 38 C.F.R. §3.1(j). The appellant has the burden to establish her status as claimant. Sandoval v. Brown, 7 Vet. App. 7, 9 (1994); citing Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). In a March 1990 decision, the RO denied entitlement to VA death pension benefits on the basis that the appellant was not entitled to recognition as the surviving spouse of the Veteran, finding that the appellant was living with another man and was holding herself out as his wife. A notice of disagreement was not received within the subsequent one-year period. Further, additional evidence was not received within one year of that decision. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board without consideration in that decision in accordance with the provisions of § 20.1304(b)(1)), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has found that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the relevant period to determine whether they contain new and material evidence relevant to a pending claim, even if the new submission may support a new claim. Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011). Significantly, absent any indication in the record that this analysis occurred, the Federal Circuit explained that it was particularly reluctant to presume that the VA considered, but rejected, the possibility that a submission contained new and material evidence relating to an earlier claim. Id. at 1368. The Federal Circuit noted the Board's statutory obligation to provide a written statement of its findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented on the record. Id. Therefore, the RO's March 1990 decision is final. 38 U.S.C.A. § 7105. Prior unappealed decisions are final. However, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). According to the Court, pertinent VA law requires that in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). Since the prior final decisions, evidence has been added to the claims file. The additional evidence of record consists of medical evidence of the appellant, a duplicate copy of the Veteran's Certificate of Death, duplicate information regarding the appellant's marriage to the Veteran, and statements of the appellant. For the purpose of establishing whether new and material evidence has been submitted, the truthfulness of evidence is presumed, unless the evidence is inherently incredible or consists of statements which are beyond the competence of the person making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993); but see Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary [of VA] to consider the patently incredible to be credible"). Furthermore, the Federal Circuit has indicated that evidence may be considered new and material if it contributes to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Subsequent to the RO's consideration of this appeal, the Court decided the case of Shade v. Shinseki, 24 Vet. App. 110 (2010). In Shade, the Court stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. In this case, the duplicate evidence is cumulative. However, the additional evidence which was not previously of record shows that the appellant ceased living with R.C. in 1993, after the last final denial of the claim. The appellant is not married nor is she holding herself out to be the spouse of a man, which was the basis of the prior final denial. She also contends that she was not at fault for the separation from the Veteran, and never held herself out to be the wife of R.C. She contends that she only ever held herself out to the public as the wife of the Veteran. Accordingly, new and material evidence has been received since the RO's March 1990 decision; thus, the claim of recognition to the appellant as the surviving spouse of the Veteran for the purpose VA death benefits is reopened. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156. Turning to the merits of the claim, as noted, the Veteran and the appellant were legally married and did not formally divorce. However, according to the appellant, due to her mental instability issues and due to the Veteran's inability to hold down a job and alcohol abuse, they did not reside together for a long period prior to the Veteran's death in 1970. During that time and after the Veteran's death, the appellant lived with R.C. for about 20 years, taking his last name as her own, although she asserts that she never held herself out to the public as his spouse. As indicated above, 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. 38 U.S.C.A. § 101(31); 38 C.F.R. § 3.50. The Court has held that 38 U.S.C.A. § 101(3) and 38 C.F.R. § 3.50(b)(1) have set forth a two-part test to determine whether a spouse can be deemed to have continuously cohabited with a veteran even if a separation has occurred. Gregory v. Brown, 5 Vet. App. 108 (1993). First, the spouse must be free of fault in the initial separation. Second, the separation must have been procured by the Veteran or due to his misconduct. The Court found that the "without fault" requirement of the law was not a continuing one. Rather, although acts subsequent to the separation may in certain cases be relevant evidence, the finding of fault or without fault is to be determined on the basis of an analysis of the conduct at the time of separation. In this case, the Board finds that the hospitalization of the appellant in 1961 preceded the initial separation. By her own admission, the appellant was hospitalized in 1961 and the appellant and the Veteran did reside together after that hospitalization. See VA Form 21-4138 dated January 24, 1990. Thus, at least as of 1961, there was no continuous cohabitation. While she contends that the Veteran's alcohol and job related issues played a role in the continued state of their separated status, it was her hospitalization that preceded the separation. Thus, the appellant was not free of fault in the separation, the separation was not procured by the Veteran, and the separation was not due to his misconduct. Thereafter, although the appellant maintains that she did not hold herself out as the spouse of R.C., the Board finds this assertion is not credible. The appellant has stated that she and R.C. were common-law spouses (see VA Form 21-4138 dated January 24, 1990) and alternatively, stated that they were not legally married as common-law marriages are not legal in New York (see VA Form 21-4138 dated August 28, 1989). However, by virtue of the fact that the appellant used R.C.'s last name as her own for many years, her statements that she did not hold herself out to the public as his wife are not credible. They lived together for decades and used the same last name jointly, in an open fashion. In fact, the appellant signed her name using R.C.'s last name only in correspondence with VA prior to the current claim. The Board finds that this shows that they held themselves out to the public as spouses, even if they were not legally married. Finally, the Board has considered the provisions regarding reinstatement of death pension benefits as governed by 38 C.F.R. § 3.55. In pertinent part, that regulation provides that on or after January 1, 1971, the fact that a surviving spouse has lived with another person and has held himself or herself out openly to the public as the spouse of such other person shall not bar the furnishing of benefits to him or her after he or she terminates the relationship, if the relationship terminated prior to November 1, 1990 [emphasis added]. 38 C.F.R. § 3.55(a)(5) (2012). As noted, however, the relationship between R.C. and the appellant ended after November 1990. Further, Section 3.215 sets forth the evidentiary requirements for establishing the termination of a marital relationship or conduct. 38 C.F.R. § 3.215 (2012). Under that provision, on or after January 1, 1971, benefits may be resumed to an unmarried surviving spouse upon filing of an application and submission of satisfactory evidence that the surviving spouse has ceased living with another person and holding himself or herself out openly to the public as that person's spouse or that the surviving spouse has terminated a relationship or conduct which had created an inference or presumption of remarriage or related to open or notorious adulterous cohabitation or similar conduct, if the relationship terminated prior to November 1, 1990. Such evidence may consist of, but is not limited to, the surviving spouse's certified statement of the fact. Id. However, this regulatory provisions applies to the resumption of benefits that were previously provided which is not the case in this appeal under consideration. Moreover, the appellant's relationship with R.C. ended in 1993. Based on the foregoing, the Board must conclude that the appellant may not be recognized as the Veteran's surviving spouse for purposes of entitlement to VA death benefits. ORDER Entitlement to recognition as the surviving spouse of the Veteran for the purpose of VA death benefits is denied. ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs