Citation Nr: 1334573 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 10-48 052 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to recognition as the Veteran's surviving spouse for purposes of receiving VA death benefits. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran served on active duty from August 1955 to September 1959. He died in December 2004. The appellant seeks entitlement to VA benefits as his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2009 determination of the RO that denied entitlement to certain VA death benefits because the appellant was not recognized as the deceased Veteran's surviving spouse. In September 2011, the appellant testified at a Board hearing by videoconference technology before the undersigned Veterans Law Judge. A transcript of this hearing is of record. FINDINGS OF FACT 1. The appellant and the Veteran were married in June 1960. 2. A preponderance of the probative evidence indicates that the Veteran and the appellant did not live together continuously prior to his death and that at least the initial separation, which was not by mutual consent, was not due to the misconduct of, or procured by, the Veteran without fault of the spouse. CONCLUSION OF LAW The criteria for entitlement to recognition as the surviving spouse of the Veteran for the purpose of VA death benefits have not been met. 38 U.S.C.A. §§ 101(3), 103, 5107 (West 2002); 38 C.F.R. §§ 3.1(j), 3.50, 3.53, 3.206 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In the context of a claim for DIC benefits, § 5103(a) notice must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). While there are particularized notice obligations with respect to a claim for DIC benefits, there is no preliminary obligation on the part of VA to conduct a predecisional adjudication of the claim prior to providing a § 5103(a)-compliant notice. However, in this case, DIC benefits were allowed February 2005. The only question is one of whether the appellant is the beneficiary for such benefits by virtue of being the Veteran's surviving spouse. Here, the appellant was sent a letter in October 2008 that fully addressed all notice elements and was issued prior to the initial RO decision in this matter. The letter provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. Moreover, the letter informed the claimant of what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the appellant in the development of the claim. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, the appellant's statements in support of the claim are of record, including testimony provided at a September 2011 hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional records, but has found nothing to suggest that there is any outstanding evidence with respect to this claim. The Board notes in this regard that the appellant submitted VA Forms 21-4142 for the association of the Veteran's treatment records prior to his death. However, the claim for DIC has already been established and the only question is one of cohabitation. Thus, medical records would not be relevant to this query. The claimant was afforded the opportunity to testify before the undersigned Veterans Law Judge in September 2011. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the regulation. 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. Here, the presiding Veterans Law Judge, in a pre-hearing conference discussed the basis of the prior determinations and noted the elements that were lacking to substantiate the claim on appeal. In addition, the appellant demonstrated actual knowledge of this information. The appellant specifically addressed evidence in support of her claims, indicating an understanding of requirements to establish her claim for DIC benefits. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (explaining that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim.) Additionally, the presiding Veterans Law Judge noted the issue on appeal and provided a basic explanation of it. Accordingly, the appellant is not shown to be prejudiced on this basis. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Analysis A recognized marriage for VA purposes is defined as one which is 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) (West 2002); 38 C.F.R. § 3.1(j) (2013). The term "spouse" means a person of the opposite sex whose marriage to the veteran meets the requirements of 38 U.S.C.A. § 103(c); 38 C.F.R. § 3.1(j), which 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 right to benefits accrued. See 38 C.F.R. § 3.50(a) (2013). A surviving spouse for VA purposes is defined as a person of the opposite sex whose marriage to the veteran meets the requirements of 38 C.F.R. § 3.1(j) (2013) and who was the spouse of the veteran at the time of the veteran's death; and (1) 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 fault of the spouse; and (2) has not remarried or has not since the death of the veteran lived with another person of the opposite sex and held himself/herself out openly to the public to be the spouse of such other person. 38 C.F.R. §§ 3.50(b), 3.53 (2013). The requirement that there must be continuous cohabitation from the date of marriage to the date of death of the veteran will be considered as having been met when the evidence shows that any separation was due to the misconduct of, or procured by, the veteran without the fault of the surviving spouse. Temporary separations which ordinarily occur, including those caused for the time being through fault of either party, will not break the continuity of the cohabitation. 38 C.F.R. § 3.53(a) (2013). 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, business, 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. State laws will not control in determining questions of desertion; however, due weight will be given to findings of fact in court decisions made during the life of the veteran on issues subsequently involved in the application of this section. 38 C.F.R. § 3.53(b). The Court has held that one claiming to be the spouse of a veteran has the burden to come forward with preponderating evidence of a valid marriage under the laws of the appropriate jurisdiction. Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2013). The appellant contends in her application for benefits dated August 2008 that she married the Veteran in 1960. She also has indicated that she initially left her husband due to his unwillingness to work to support their family. In her VA Form 9 form, she indicated that the second time she returned to Arkansas to attempt reconciliation with the Veteran, his personality had changed and he went into violent rages. The timeline which the appellant laid out during her September 2011 hearing indicates that she moved with her husband to Arkansas in October 1962 for a period of three and a half months. She indicated that she left Arkansas for California because her husband would not get a job to support her and their two children. The appellant indicated that she tried to reunite with him two additional times, moving back to Arkansas. The appellant reported that the second time that she moved back to Arkansas, she noticed a personality change in the Veteran and he became abusive. As an initial matter, the Board notes that the appellant submitted a Court order indicating that she was the primary beneficiary of the Veteran's will and received the spouse's election, as dictated by the law of Arkansas. However, the Board finds that the Arkansas Court's adjudication is not dispositive of the issue before the Board as there is apparently no cohabitation requirement with regard to that court finding her to be the Veteran's legal spouse and additionally VA is not bound by findings of a state's court although due weight will be given. 38 C.F.R. § 3.53(b). The Board notes at the outset that whether the appellant held herself out as married to another person during the Veteran's lifetime is not relevant to the current inquiry. VA regulation indicates that the appellant may not have remarried or lived with another person of the opposite sex and held himself/herself out openly to the public to be the spouse of such other person since the death of the veteran. It's clear from the appellant herself that she deserted the Veteran in 1962 when she moved to California, leaving him in Arkansas. It's also clear that the separation was not by mutual consent as the Veteran vigorously protested her leaving with their two children according to the appellant. It is also clear that the Veteran did not consider himself married. When applying for compensation in February 2003, the Veteran indicated that he was widowed (referring to a long-term intervening relationship with EAD that ended in her death in 2002). The Veteran would have received a greater benefit if he claimed to have been married and this is convincing evidence of his impression of his marital status. He was also listed as widowed on his death certificate in December 2004. The appellant's claim turns on whether the separation was due to the misconduct of, or procured by, the Veteran without the fault of the surviving spouse. The Board is compelled to find that the initial separation was not due to the misconduct of the Veteran according to the appellant's own testimony. She has consistently indicated that she initially left the Veteran due to his unwillingness to get a job. And that, only when she returned to Arkansas a second time, did he become violent. The appellant subsequently left the Veteran again due to this change in his personality. A preponderance of the probative evidence indicates that the Veteran and the appellant did not live together continuously prior to his death and that the initial separation was not due to the misconduct of, or procured by, the Veteran without fault of the spouse. Thus, the appellant is not considered to be the surviving spouse of the Veteran for VA purposes, and her claim is denied. In reaching the conclusion above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to recognition as the Veteran's surviving spouse for purposes of VA death benefits is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs