Citation Nr: 1322776 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 12-15 426 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Jackson, Mississippi THE ISSUE Whether the Appellant may be recognized as the Veteran's spouse for the purposes of entitlement to VA benefits. WITNESSES AT HEARING ON APPEAL Appellant and her daughter ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from August 1952 to July 1954. He died in January 1987 and the Appellant in this matter seeks recognition as his surviving spouse for the purpose of entitlement to VA benefits. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 decision by a VA Regional Office. In April 2013, a hearing was held before the Veterans Law Judge signing this document, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c) (West 2002). A transcript of this hearing is of record. Please note 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 Veteran and the Appellant were married in 1951 and divorced in 1980. 2. The Appellant married another individual after her divorce from the Veteran and the Veteran and the Appellant remained divorced from each other at the time of the Veteran's death in January 1987. CONCLUSION OF LAW The Appellant is not entitled to recognition as the Veteran's surviving spouse for the purpose of receiving VA benefits. 38 U.S.C.A. §§ 101(3), 103(c), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1(j), 3.50, 3.52, 3.102 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that any Veterans Law Judge who chairs a hearing fulfill two duties to comply with the VCAA. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant, 23 Vet. App. at 488. The VCAA is not applicable to, as in the instant case, an appeal where the law, and not the underlying facts or development of the facts, are dispositive in a matter. Manning v. Principi, 16 Vet. App. 534, 542-543 (2002); see also See Mason v. Principi, 16 Vet. App. 129, 132 (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). In the present case, there is no legal basis upon which the sought death benefits may be awarded, and the Appellant's claim must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Moreover, this decision results in a denial of recognition as the Veteran's surviving spouse for the purpose of receiving VA death benefits and any failure to provide notice as to the effective date and rating is harmless error. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As the law is dispositive in this case, the Appellant is thus not entitled to VCAA-related assistance and notification. Absent any evidence from the Appellant indicating otherwise, there is no need to further attempt to confirm the evidence already obtained by VA. II. Merits of the Case/Analysis When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an Appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. The Board notes that it has reviewed all of the evidence of record, to include in the Veteran's claims file and the Virtual VA file (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal. (The Virtual VA file contains notice of the March 2011 denial of the Appellant's claim for death benefits that is not physically of record but does not otherwise contain any evidence or correspondence not physically of record pertinent to the matter at hand.) Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Appellant claims entitlement to recognition as the Veteran's surviving spouse for the purpose of receiving VA death benefits. Such benefits may be paid to the surviving spouse of a Veteran in certain circumstances; however the Board must determine whether the Appellant is entitled to recognition as the Veteran's surviving spouse for the purpose of receiving these VA benefits. A 'surviving spouse' is defined as (1) a person of the opposite sex in a recognized marriage for VA purposes; (2) who was the spouse of the 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 except, as provided in 38 C.F.R. § 3.53(a), where there was a separation which was due to the misconduct of, or procured by, the Veteran without the fault of the spouse; and (4) 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 himself or 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). "Marriage" 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 rights to benefits accrued. 38 U.S.C.A. § 103(c); 38 C.F.R. § 3.1(j). A valid marriage may be established by various types of documentary evidence together with the claimant's certified statement concerning the date, place and circumstances of dissolution of any prior marriage, provided that such facts, if they were to be corroborated by the evidence, would warrant acceptance of the marriage as valid. 38 C.F.R. § 3.205(a). In jurisdictions where marriages other than by ceremony are recognized, the marriage may be established by 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 a 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 husband and wife, and whether they were generally accepted as such in the communities in which they lived. 38 C.F.R. § 3.205(a)(6). Pertaining to the requirements of 38 C.F.R. § 3.53, regulations provide that there must be continuous cohabitation from the date of marriage to the date of death of the Veteran except where the evidence shows that any separation was due to the misconduct of, or procured by, the Veteran without the fault of the surviving spouse. 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, businesses, 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. After a full review of the record, the Board concludes that a preponderance of the evidence is against a finding of recognition of the Appellant as the surviving spouse of the Veteran for the purpose of receiving VA death benefits. A marriage certificate shows that the Appellant and Veteran were married in March 1951. The Appellant and the Veteran divorced in 1980, approximately 7 years prior to his death in 1987. (Court documents filed in connection with this divorce are of record, the Veteran's death certificate lists his marital status as "divorced," and the matter of the existence of this divorce is otherwise not in dispute). Following this divorce, the Appellant remarried another individual who died in July 2012. (The death certificate of this individual indentified the Appellant as his surviving spouse, and the existence of this additional marriage is also not in dispute.) As cited above, the criteria for recognition as a surviving spouse for VA purposes includes one who was the spouse of the Veteran at the time of the Veteran's death. See 38 U.S.C.A. § 101(3); 38 C.F.R. § 3.50(b). Since a surviving spouse is defined by law as a person who was the spouse of the Veteran at the time of the Veteran's death, the Appellant's divorce from the Veteran, a fact that is undisputed in this case, bars her from eligibility for status as his surviving spouse. 38 U.S.C.A. § 101(3) ("surviving spouse means . . . a person . . . who was the spouse of a Veteran at the time of the Veteran's death"); 38 C.F.R. § 3.50(b)(2). While the Board acknowledges the arguments advanced by and on behalf of the Appellant, to include selective citations regulatory provisions pertaining to the relationship between a Veteran and his spouse/surviving spouse, the Appellant's marriage to the Veteran was legally terminated by divorce prior to the Veteran's death, thereby precluding entitlement to status as a surviving spouse under any of these provisions. As for the contentions raised at the hearing before the undersigned that the divorce from the Veteran was necessitated due to his being abusive, it has not been alleged that the Appellant had been "separated" from the Veteran due to such abuse, rather than being divorced from him (thereby meaning that her marriage to the Veteran had been legally terminated) at the time of his death so as to prevail under 38 C.F.R. § 3.53(a) on the basis of a separation due to the Veteran's "misconduct." In short, the Appellant does not meet the requirements of a surviving spouse under C.F.R. § 3.50. The legal criteria governing one's status as a surviving spouse are clear and specific, and the Board is bound by them. In this case, they do not provide a basis upon which a favorable decision can be rendered. The law in this case is dispositive; therefore, the Appellant's claim must be denied based on a lack of entitlement under the law. Sabonis, supra. ORDER Entitlement to recognition of the Appellant as the Veteran's surviving spouse for VA benefits purposes is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs