Citation Nr: 1333705 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 09-17 884 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California THE ISSUE Whether the appellant may be recognized as the Veteran's surviving spouse for purposes of receiving VA death pension benefits. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from January 1967 to January 1971. He died in September 1974. The appellant is the Veteran's widow who is seeking entitlement to VA death benefits as the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from a November 2007 determination from the Department of Veterans Affairs (VA) Regional Office (RO) above. In February 2011, the Board remanded the matter for further evidentiary development. Unfortunately, such development was not fully completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Therefore, the appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on her part is required. REMAND The Veteran and appellant were married in January 1968, while he was on active duty, and they remained married until the Veteran's death in September 1974. Two children were produced from the marriage. However, the evidence also reflects that the appellant remarried G.S.A. in January 1997, to whom she remained married until his death in September 2000. Following the death of G.S.A., the appellant filed a claim for VA death pension benefits, asserting that she is the surviving spouse of the Veteran. Remarriage is generally a bar to eligibility for VA benefits predicated upon status as a surviving spouse; however, there are exceptions to this general rule. See 38 C.F.R. §§ 3.55(a)(1) to (a)(10); see also 38 U.S.C.A. §§ 103(d), 1311(e). Remarriage of the surviving spouse shall not bar the furnishing of benefits if the marriage was void or has been annulled by a court having basic authority to render annulment decrees, unless it is determined by VA that the annulment was obtained through fraud by either party or by collusion. 38 C.F.R. § 3.55(a)(1). The remaining exceptions to the general rule are not applicable in this case because they (1) apply to marriages that were terminated prior to November 1, 1990, or began on or after October 1998, or (2) involve benefits other than the death pension benefit sought by the appellant. 38 C.F.R. §§ 3.55(a)(2-10). In this case, while the appellant has reported that she married G.S.A. following the death of the Veteran, she has asserted that her marriage to G.S.A. was not legal and therefore void under 38 C.F.R. § 3.55 because he was still married to a woman he previously married in Mexico. In her May 2009 substantive appeal, she asserted that after G.S.A's death, she had contacted his family in Mexico and at that time learned of his prior marriage. In the same statement, she provided the name of G.S.A.'s home town in Mexico, Agua Caliente. In a January 2011 written statement, she again reported G.S.A.'s home town in Mexico. She also provided a phone number in San Bernardino for obtaining a copy of her marriage certificate to G.S.A. We observe that in a September 2007 "Declaration of Status of Dependents" VA Form, she reported that she married G.S.A. in Ontario, California, which is not far from San Bernardino, California. In the Board's February 2011 remand, the Board determined that VA's duty to assist the appellant in the development of her claim includes making reasonable efforts to help her in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board then ordered that additional efforts be made to obtain information pertinent to this claim, including specifically, the marriage certificate documenting the marriage of the appellant and G.S.A. and any information regarding G.S.A.'s prior marriage and death. Upon remand, the RO took the single action of writing the appellant a letter in which she was requested to provide a copy of the January 1997 marriage certificate and G.S.A.'s death certificate. (In response, the appellant provided a copy of the death certificate, which reflects that she was G.S.A.'s spouse at the time of his death, as well as the primary informant to the official who completed the death certificate.) The RO did not make any independent attempt to follow up on the information the appellant had provided. The RO did not attempt to obtain a copy of the January 1997 marriage certificate and did not attempt to obtain any information from Mexico pertaining to the alleged prior marriage of G.S.A. For these reasons, the Board determines that another remand is required to ensure compliance with the Board's previous order. Stegall. Again the Board observes that the appellant is expected to assist the AMC/RO as much as possible, and that obtaining the requested information herself would greatly assist the VA in developing evidence to support her claim. However, the Board also notes the appellant's many statements to the effect that she is old, disabled, unable to drive, and that she has lost or misplaced many documents due to homelessness and frequent moves. Fulfilling the VA's statutory duty to assist her in developing her claim is especially important under these circumstances. The Board draws the attention of the AMC/RO to the regulatory provisions governing the evidence requirements pertaining to evidence from foreign countries (38 C.F.R. § 3.202) and proof of marriage (38 C.F.R. § 3.205, also see 38 C.F.R. § 3.204). Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should contact the appropriate official repositories of such documents in San Bernardino, California, and Ontario, California, to attempt to obtain copies of the January 1997 marriage certificate for the appellant and G.S.A. 2. The AMC/RO should contact the appropriate official repositories of such documents in Agua Caliente, Mexico, to determine whether G.S.A. had previously married anyone and whether the marriage had been legally dissolved. 3. All attempts to procure this information and evidence should be documented in the file, including all unsuccessful attempts. 4. Thereafter, the issue on appeal should be readjudicated. If the benefit sought on appeal is not granted to the appellant's satisfaction, the appellant and her representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise informed. The appellant has the right to submit additional evidence and argument on the matter 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 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). _________________________________________________ JOHN J. CROWLEY 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).