Citation Nr: 1328062 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 10-10 978 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Whether new and material evidence has been presented to reopen the question of recognition of the Appellant as the surviving spouse of the Veteran. ATTORNEY FOR THE BOARD N. L. Northcutt, Counsel INTRODUCTION The Veteran served on active duty from October 1972 to December 1982. He died in 2000. The Appellant is the Veteran's former spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal of an administrative decision in July 2009 of a Department of Veterans Affairs (VA) Regional Office (RO). While a private attorney had been involved in the matter, in a statement in November 2012, the Appellant declared that she was proceeding pro se. In February 2013, the Board remanded the case to ensure procedural due process. As the development has been completed, no further action to ensure compliance with the Board's remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. In a decision of August 2003, the Board denied recognition of the Appellant as the surviving spouse of the Veteran, because the Appellant and Veteran were divorced before the Veteran's death; the Appellant was notified of the decision and of her appellate rights, and while she initiated an appeal to the United States Court of Appeals for Veterans Claims (Court), in September 2003 the Court granted her motion to dismiss the appeal. 2. The additional evidence presented since the Board's decision in August 2003 is either redundant or cumulative of evidence previously considered or does not relate to the unestablished fact necessary to substantiate that the Appellant is the Veteran's surviving spouse. CONCLUSION OF LAW New and material evidence has not been presented to reopen the question of recognition of the Appellant as the surviving spouse of the Veteran. 38 U.S.C.A. §§ 5108, 7104 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.156, 20.1100 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. In a new and material evidence claim, the VCAA notice must include the evidence and information that is necessary to reopen the claim and the evidence and information that is necessary to establish the underlying claim for the benefits sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the statement of the case in March 2010, the RO notified the Appellant of the evidence needed to establish her status as the Veteran's surviving spouse. In February 2013, the RO notified the Appellant of evidence need to reopen the matter previously denied, namely, new and material evidence. The Appellant was also notified of the basis for the previously denial of the matter. The Appellant was also notified that VA would obtain service records, VA records, and records of other Federal agencies, and that she could submit other records not in the custody of a Federal agency, such as private medical records, or with her authorization VA would obtain any such records on his behalf. The notice included the provisions for determining the effective date of a claim. As for the content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence), of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); and of Kent v. Nicholson, 20 Vet. App. 1 (2006) (the elements of a new and material evidence claim). To the extent that the initial VCAA notice was provided in the statement of case, the VCAA notice was deficient. Although VCAA notice was deficient, the Board finds no evidence that the Veteran was prejudiced, because the Appellant's interest that the VCAA notice was designed to protect, that is, the essential fairness of the adjudication, was not affected as the Appellant subsequently had the opportunity to submit additional argument and evidence in support of her appeal. To the extent that the VCAA notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The procedural defect was cured as after the RO provided VCAA notice, the matter was readjudicated as evidenced by the supplemental statement of the case dated in March 2013. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a request for a VA benefit. The record includes documents certifying the Veteran's marriage to the Appellant, the Veteran's divorce from the Appellant, and the Veteran's death. The record also includes service department documents reflecting recognition of the Appellant as the Veteran's former spouse and court documents reflecting criminal proceedings stemming from the Veteran's treatment of the Appellant. As the Appellant has not identified any additional evidence pertinent to the matter and as there are no additional records to obtain, the Board concludes that no further assistance to the Appellant in developing the facts pertinent to the matter is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSION Procedural History and Evidence Previously Considered In a decision in August 2003, the Board denied recognition of the Appellant as the surviving spouse of the Veteran. The Board found that because the Appellant had divorced the Veteran in 1995, about five years before the Veteran's death, the Appellant could not be legally recognized as the Veteran's surviving spouse. While the Appellant initiated an appeal to the United States Court of Appeals for Veterans Claims (Court), she subsequently moved to dismiss her appeal and the Court granted her motion to dismiss in September 2003. The Board's decision in August 2003 is final by operation of law, except the matter may be reopened if new and material evidence is presented. 38 U.S.C.A. §§ 5108, 7104(b); 38 C.F.R. §§ 3.156, 20.1100. The relevant evidence of record at the time of the Board's decision in August 2003 consisted of certificates documenting the Veteran's marriage to the Appellant in 1982, the divorce of the Veteran from the Appellant in 1995, and the Veteran's death in 2000. In statements and in testimony and in procedural documents, including the application, notice of disagreement, and substantive appeal, the Appellant asserted that she divorced the Appellant in 1995 due to the Veteran's abusive treatment of her resulting from the Veteran's service-connected psychiatric disorder and because she was trying to protect the Veteran's biological daughter from his first marriage, whom she had adopted, from the Veteran's mistreatment. The Appellant asserted that she was forced to divorce the Veteran due to no fault of her own, and that she had maintained communication with the Veteran after their divorce, was at the Veteran's bedside when he died in 2000, and paid for the Veteran's funeral expenses. A portion of which VA had reimbursed when granting her claim for burial benefits. The Appellant maintained that she should be recognized as the Veteran's surviving spouse because she had cohabitated with the Veteran from the time of their marriage until she was forced to separate from him due to his misconduct and through no fault of her own. The Appellant argued that VA's award of burial benefits to her indicated that VA had recognized her as the Veteran's surviving spouse for the purpose of VA compensation. Also of record were documents showing criminal proceedings resulting from the Veteran's actions towards the Appellant, namely, the Veteran's conviction in 1993 for assault of the Appellant, and a protective order issued in 1997 prohibiting the Veteran's proximity of less than 300 feet from the Appellant. The Appellant also had sought benefits as the Veteran's spouse in an application for a military retiree spousal annuity, which was initially denied in 2001. Current Claim to Reopen As the Board's decision in August 2003 is final based on the evidence then of record, new and material evidence is required to reopen the matter. 38 U.S.C.A. § 5108. The Appellant submitted a new application for Dependency and Indemnity Compensation in June 2009 that the RO accepted as an application to reopen the matter of her recognition as the Veteran's surviving spouse. As the Appellant's application was received after August 2001, the current regulatory definition of new and material evidence applies. "New evidence" means existing evidence not previously submitted to agency decision makers. "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). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The presumption of credibility is rebuttable when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). In determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Also, the law is to be interpreted to enable reopening of a claim, rather than to preclude it. Shade v. Shinseki, 24 Vet. App. 110 (2010). Analysis The additional pertinent evidence presented since the Board's decision in August 2003 includes marriage, divorce, and death certificates, records of criminal proceedings, an administrative decision by the Army Board for Correction of Military Records, and the Appellant's statements. The records show that the Veteran married the Appellant in 1982, the Veteran was convicted of assault of the Appellant in 1993, the Veteran was divorced from the Appellant in 1995, a protective order was issued in 1997, and the Veteran died in 2000. This evidence is redundant, that is, identical to evidence considered by the Board in its decision in August 2003. And redundant evidence does not meet the regulatory definition of new and material evidence under 38 C.F.R. § 3.156(a). As for evidence that the Veteran was divorced from his first spouse in 1982, the evidence does not relate to an unestablished fact necessary to substantiate the claim, namely, that the Appellant was married to the Veteran at the time of the Veteran's death. For this reason, the evidence is not new and material evidence under 38 C.F.R. § 3.156(a). In an administrative decision in September 2008, the Army Board for Correction of Military Records corrected the Veteran's military records to show that the Veteran has changed the coverage of his survivor benefit plan to "former spouse" coverage. Recognition as a "former spouse" does not relate to an unestablished fact necessary to substantiate the claim, namely, that the Appellant was married to the Veteran at the time of the Veteran's death. For this reason, the evidence is not new and material evidence under 38 C.F.R. § 3.156(a). In her statements, the Appellant asserts that because she divorced the Veteran due to his abusive behavior, she should be recognized as the Veteran's surviving spouse under the criteria that allows a separated spouse to be recognized as the surviving spouse if the separation was procured through the Veteran's misconduct and no fault on the part of the spouse. The Appellant's assertions that she divorced the Veteran due to his abusive behavior and that their marriage ended through no fault of her own is cumulative evidence, as the Appellant made the same assertions in her substantive appeal to the Board in March 2002. This evidence is supporting evidence of facts already established and considered by the Board in its decisions in August 2003. And cumulative evidence, that is, evidence supporting facts already established and considered, does not meet the regulatory definition of new and material evidence under 38 C.F.R. § 3.156(a). As for the Appellant's argument that her status as the "former spouse" of the Veteran as corrected by the Army Board for Correction of Military Records, allowing her to receive a spousal annuity, also qualifies her for VA benefits, this evidence does not relate to an unestablished fact necessary to substantiate the claim, namely, that the Appellant was lawful married to the Veteran at the time of his death, the lack of such evidence was the basis for the denial of her appeal by the Board in its decision in August 2003. While a spouse who was separated from a veteran at the time of a veteran's death, but still married to a veteran, under circumstances, such as described by Appellant, may be recognized as a veteran's surviving spouse for the purpose of VA death benefits, the benefit is based on valid marriage at the time of death. As the Appellant was divorced from the Veteran at the time of the Veteran's death, recognition as a "former spouse" does not relate to an unestablished fact necessary to substantiate the claim as a surviving spouse of a Veteran for the purpose of VA death benefits. As the additional evidence is not new and material, the benefit-of-the-doubt standard of proof does not apply. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER As new and material evidence has not been presented, the question of recognition of the Appellant as the surviving spouse of the Veteran is not reopened, and appeal is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs