Citation Nr: 1328365 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 13-09 701 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to nonservice-connected death pension benefits, to include special monthly pension based on the need for regular aid and attendance. REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran had active duty from January 1943 to February 1946. He died on May [redacted], 1971. The appellant, who was married to the Veteran at the time of his death, claims entitlement to nonservice-connected pension and aid and attendance benefits as his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 decision of the Department of Veterans Affairs (VA) Regional Office (RO), which determined that the appellant did not meet the criteria for recognition as a surviving spouse and consequently denied her claim. 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). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND As noted in the introduction, the appellant seeks nonservice-connected pension and aid and attendance benefits as the Veteran's surviving spouse, notwithstanding her remarriage following his death. By way of history, the Board observes that the appellant was married to the Veteran from July 1943 until his death in May 1971. The appellant subsequently entered into a second marriage, which lasted from June 1989 to September 1991. Significantly, for purposes of this appeal, she now contends that she separated from her second husband and initiated the legal proceedings to divorce her second husband several months before their marriage officially ended. The circumstances surrounding the onset and termination of the appellant's second marriage are significant as they control whether or not she qualifies as a surviving spouse for VA benefits purposes. VA's governing regulations define a surviving spouse as "a person of the opposite sex who was the spouse of a Veteran at the time of the Veteran's death, 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 section 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 C.F.R. § 3.50 (emphasis added). The exceptions outlined in section 3.55 dictate, in pertinent part, that remarriage of a surviving spouse shall not bar the award of VA benefits if such a union was annulled or void; or, if it commenced on or after January 1, 1971, and was terminated by proceedings that began or ended prior to November 1, 1990. 38 C.F.R. § 3.55(a) (1), (2). Other provisions of this section contemplate renewed benefits eligibility in cases involving remarriages that terminate by death, divorce, or annulment on or after October 1, 1998. 38 C.F.R. § 3.55 (3)-(7). However, the latter provisions only extend to Dependency and Indemnity Compensation, medical care, educational assistance, and home loan benefits. As such, they are not applicable in the instant case. 38 C.F.R. § 3.55 (3)-(7). Even if these provisions were for application, they would not entitle the appellant to the benefits sought since, by her own admission, her second marriage ended well before October 1, 1998. Based upon the foregoing, the Board reasons that, in order to meet the basic criteria for VA benefits eligibility, the appellant must establish that the proceedings leading to the 1991 termination of that union were initiated prior to November 1, 1990. 38 C.F.R. § 3.55(a) (1), (2). No such definitive showing has yet been made. Indeed, that is why the RO determined that the appellant's claim should be denied as a matter of law. To this point, the Board notes that the appellant submitted a copy of a check, dated August 3, 1990, purporting to be the upfront total amount owed for attorney services in connection with the divorce case. The Board finds that the retention of an attorney, even for the specific purpose of the pursuit of a divorce action, is not tantamount to "the commencement of legal proceedings." To allow some unilateral act such as the tender of a check to preserve ones rights is too uncertain and gives rise to potential manipulation of the law. The Board notes that the appellant submitted one page of a Complaint for Divorce in the Trial Court of Massachusetts, Probate and Family Court Department; however, the complete complaint with date is not associated with the claims file. The date of this Complaint for Divorce is critical to the claim on appeal as the filing of a Bill of Complaint for Divorce in a court of competent jurisdiction would be considered a "commencement of legal proceedings." Nevertheless, the Board finds that, given the competent and seemingly credible arguments submitted by the appellant and her daughter, VA is now on notice of the existence of additional evidence that may satisfy the threshold criteria set forth above. As such, further development efforts are warranted. Specifically, on remand, the appellant should be asked to clarify her marital history in light of the aforementioned argument that the proceedings leading to the termination of that union may have commenced prior to November 1, 1990. In this regard, the appellant should be notified of the particular types of evidence that may be used to establish that she meets one or more of the exceptions set forth in section 3.55, supra, including documentation indicating that the proceedings leading up to the termination of that marriage began prior to November 1, 1990. 38 C.F.R. § 3.55(a) (1), (2). The appellant should be advised to submit any such evidence in her own possession or, in the alternative, to complete an authorization and consent form (VA Form 21-4142) enabling VA to obtain that evidence on her behalf. The above request for information should be accompanied by a formal notice letter in accordance with the Veterans Claims Assistance Act of 2000 (VCAA). See Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Send the appellant and her representative a VCAA notice letter, pursuant to 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) , which advises them of the evidence and information necessary to substantiate a claim for nonservice- connected death pension benefits, to include the threshold issue of whether the appellant qualifies as a surviving spouse under VA's governing provisions. 38 C.F.R. §§ 3.50, 3.55(a) (1), (2). In addition, the appellant should be informed of the need for additional evidence to substantiate the arguments she and her daughter have submitted, which suggests that the proceedings leading to the termination of her second marriage may have commenced prior to November 1, 1990. The appellant should be notified of the particular types of evidence that may be used to substantiate the above arguments, including documentation indicating that the proceedings to terminate this marriage began prior to November 1, 1990. The appellant should be advised to submit any such evidence in her own possession, to include a complete copy of the Complaint for Divorce that lead to the dissolution of her marriage to her second husband in September 1991. 2. If sufficient evidence is not received in response to the above, the RO/AMC should attempt to contact the appropriate authority in the Trial Court of Massachusetts, Probate and Family Court Department, to obtain information concerning the date of filing of the Complaint of Divorce in connection with the September 1991 dissolution of the marriage between the appellant and her second husband [redacted]. All efforts to contact the county authorities should be noted in the claims file. The appellant should be advised of any inability to obtain the requested evidence. 3. After the development requested above, as well as any additional development deemed necessary, has been completed, the record should again be reviewed and the claim readjudicated. If the benefits sought on appeal remain denied, the appellant and her representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).