Citation Nr: 1323472 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 10-25 565 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to recognition of the Appellant as the surviving spouse of the Veteran for the purpose of receiving VA death benefits. ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran served on active duty from March 1965 to July 1966. He died in December 2003. The Appellant is seeking recognition as the Veteran's surviving spouse for the purpose of receiving VA death pension benefits. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas which determined that new and material evidence had not been received to reopen the claim on appeal. The Appellant testified at October 2010 hearing before a Decision Review Officer (DRO). The hearing transcript has been associated with the claims file. In December 2011, the Board reopened the Appellant's claim and remanded the case for further development. The December 2011 Board remand directed additional development that included a request to obtain an amended certificate of death from the Appellant, if available, and a request to any available records that pertain to the Veteran's marital status at the time of his death. The Board finds that the RO substantially complied with the Board remand order and as such, the Board may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). FINDINGS OF FACT 1. The Veteran and Appellant married in March 1981. 2. The marriage is not shown to have been terminated by divorce. 3. The Appellant did not live with the Veteran continuously from the date of marriage to the date of the Veteran's death, but was instead separated due to the Veteran's misconduct without fault of the Appellant. CONCLUSION OF LAW The Appellant is entitled to recognition as the Veteran's surviving spouse for the purpose of receiving VA death benefits. 38 U.S.C.A. §§ 101, 103 (West 2002); 38 C.F.R. §§ 3.1(j), 3.5, 3.50 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, given the fully favorable decision on issue of entitlement to recognition of the Appellant as the surviving spouse of the Veteran for the purpose of receiving VA death benefits, the Board finds that any issue with regard to the timing or content of the VCAA notice provided to the Appellant is moot or represents harmless error. Law and Analysis For VA purposes, a marriage is considered 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) ; 38 C.F.R. § 3.1(j). A surviving spouse is defined as (1) a person 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). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). The Board finds the Appellant and the Veteran entered a recognized marriage for VA purposes in March 1981, as their marriage is confirmed by a valid Marriage Certificate from the state of Georgia. The Board finds that the marriage is not shown to have been terminated by divorce or annulment. The Appellant has provided lay statements and testimony during an October 2010 DRO hearing asserting that she and the Veteran were never divorced. She reported that while they were separated, a divorce was not obtained. She indicated that she did file for divorce in Odessa, Texas in 1983, but indicated that they reconciled their relationship due to the Veteran's health problems and that she stopped the divorce proceedings. She reported that they were again separated in 1990 or 1991, but reported that a divorce was not obtained. She testified that she believed that the Veteran had remarried, but indicated that the marriage was invalid because she and the Veteran were still married at that time. The Veteran's certificate of death shows that he died in December 2003 in Lubbock, Texas. On the certificate of death, he is listed as being divorced. The Veteran's son is identified on the certificate of death as the informant who provided the information, including information regarding the Veteran's marital status. However, telephone correspondence with the Veteran's son in September 2005 shows that while the Veteran had since remarried, his son reported that he was not sure if the Veteran and the Appellant's marriage was terminated by divorce or not. Correspondence from the Social Security Administration, received in October 2010 shows that the Appellant was not sure if she was divorced or not when she submitted her application to Social Security in October 2004. The Appellant reported that she had checked with the County Clerk in El Paso Texas, but no divorce was found. Additionally, the representative from the Social Security office contacted the Lubbock County Clerk, but no divorce was found. The RO made an additional attempt to verify the Veteran's marital status. A January 2013 correspondence from the District Clerk in Lubbock, Texas shows that there were no divorce records on file for the Veteran and the Appellant. Because the Appellant and the Veteran are shown to have entered into a valid marriage, and because there is no evidence of divorce, resolving reasonable doubt in favor of the Appellant on this question, the Board finds that the Appellant was the spouse of the Veteran at the time of his death. The Veteran and Appellant did not live together continuously from the date of marriage to the date of the Veteran's death, but were separated due to the Veteran's misconduct without fault of the Appellant. The Appellant indicated in a prior October 2004 claim for benefits that she and the Veteran separated due to his alcoholism, and reported that she left him in 1990 or 1991 when he pushed her down a flight of stairs. In subsequent lay statements and testimony, the Appellant continues to assert that she and the Veteran were separated due to his problems with alcoholism, and due to the incident when he pushed her down a flight of stairs. VA treatment records dated from 2002 to 2003 show that the Veteran was treated for alcohol dependence and he identified a long history of alcohol dependence. In telephone correspondence dated in September 2005, the Veteran's son reported that he did believe that the Veteran and the Appellant's separation was due the alcoholism the Veteran struggled with. In a July 2005 statement, the Appellant indicated that she never remarried. The Board finds that the Appellant's statements and testimony provide competent, credible, and probative evidence showing that she was separated from the Veteran due to his misconduct without fault of the Appellant. Her testimony has been consistent throughout the appeal and is supported by corroborating evidence from the Veteran's son, and by evidence from VA treatment records showing that the Veteran was treated for alcohol dependence. The Appellant is not shown to have remarried in this case, and there is no indication that she has otherwise held herself out openly to the public to be the spouse of another person. For these reasons, resolving reasonable doubt in favor of the Appellant, the Board finds that she is entitled to recognition as the surviving spouse of the Veteran for the purpose of receiving VA death benefits. 38 U.S.C.A. § 101(3); 38 C.F.R. § 3.50(b). ORDER Recognition of the Appellant as the surviving spouse of the Veteran for the purpose of receiving VA death benefits is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs