Citation Nr: 1335535 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 09-44 345 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to recognition as the Veteran's surviving spouse for the purposes of survivor benefits. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Fields, Counsel INTRODUCTION The Veteran served on active duty from October 1975 to September 1978. He died in August 2007, and the appellant seeks recognition as his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 administrative determination issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In September 2009, the appellant testified during a hearing before a decision review officer (DRO) at the RO. A transcript of that hearing is of record. The appellant also testified before a Veterans Law Judge via video-conference hearing in December 2011; however, a transcript of that hearing could not be produced. The appellant was advised, and she requested to testify at another hearing before a Veterans Law Judge at the RO. The case was remanded for this purpose in May 2012, and the Veteran testified before the undersigned in a hearing at the RO in August 2012. A transcript of that hearing is of record. FINDINGS OF FACT 1. The Veteran and the appellant married in April 2002. 2. The Veteran died in August 2007. 3. The Veteran and the appellant physically separated in October 2006 due to no fault of the appellant, and a valid divorce decree became final in April 2007. CONCLUSION OF LAW The criteria for recognition of the appellant as the Veteran's surviving spouse have not been met. 38 U.S.C.A. §§ 101, 103, 1102 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.50, 3.52, 3.53, 3.54, 3.206 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The determinative facts in this case are not in dispute and, therefore, the law and not the underlying facts or development of the facts, is dispositive. As such, the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations concerning notice and assistance do not apply. See Manning v. Principi, 16 Vet. App. 534 (2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). Further, to the extent that there is any factual dispute, general due process considerations have been satisfied. The appellant has been notified of the evidence and information necessary to prove her claim and has had ample opportunity to present evidence and arguments. She has, in fact, done so, including by way of presenting testimony at a personal hearing before a DRO and before the undersigned Veterans Law Judge. Both hearing officers notified the appellant of the missing elements, including that she must show that she was legally married to the Veteran at the time of death to be entitled to survivor benefits, and asked questions in an attempt to elicit relevant information. See Bryant v. Shinseki, 23 Vet. App. 488 (2010); 38 C.F.R. § 3.103. All available, identified evidence has been obtained. The paper claims file and electronic claims files in Virtual VA and the Veterans' Benefits Management System (VBMS) have been reviewed and considered. All pertinent evidence is also associated with the paper claims file. Moreover, the appellant waived review of any additional evidence by the agency of original jurisdiction in a December 2011 statement. As such, no further notice or assistance is necessary for a fair adjudication in this case. II. Legal Analysis VA death benefits may be paid to a surviving spouse who was married to the Veteran one year or more prior to the Veteran's death, or for any period of time if a child was born of the marriage. 38 U.S.C.A. § 1102; 38 C.F.R. § 3.54. The term "surviving spouse" means a person (a) who was married to a Veteran at the time of the Veteran's death; and (b) 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 surviving spouse); and (c) who has not remarried or (in cases not involving remarriage) has not since the death of the Veteran lived with another person and held himself or herself out openly to the public to be the spouse of such other person. 38 U.S.C.A. § 101(31); 38 C.F.R. § 3.50. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be resolved in favor of the claimant. 38 U.S.C.A. § 5107 ; 38 C.F.R. § 3.102. The appellant filed a claim for survivor benefits in January 2009. She reported that she married the Veteran in April 2002, they remained married and their marriage ended by the Veteran's death in August 2007, and she had not remarried since the Veteran's death. There were no children born of the marriage. The appellant has clearly explained her assertions and beliefs, including during hearings before a DRO and the Board, as well as in her substantive appeal (VA Form 9). She asserts that she never intended to divorce the Veteran and did not believe they were divorced at the time of death. Rather, she states that she only intended to file for legal separation based on the Veteran's erratic and dangerous behavior and continuous medical problems. The appellant filed for a restraining order against the Veteran in October 2006, shortly before filing for legal separation. She states that she did not hear from or see the Veteran for nearly a year after filing for separation, until the day before his death in August 2007. The appellant further states that she and the Veteran agreed that a temporary separation was best for her own health and financial circumstances. She states that the Veteran agreed to give her half of his VA compensation benefits because she needed the money. The appellant states that her attorney at the time told her they were going to court to get permanent orders to allow her to have benefits for life, regardless of whether the Veteran came back to her, but she did not believe this meant a divorce. In sum, the appellant asserts that her separation and eventual divorce from the Veteran was through no fault of her own but, rather, was due to her being unable to handle the mental exhaustion of the Veteran going in and out of the hospital for psychiatric treatment and physically abusing herself and others when he was drinking too much. She states that she loved the Veteran and believed that they would eventually end their separation and live together again as husband and wife. Two friends of the Veteran testified during the September 2009 DRO hearing to corroborate the appellant's description of the Veteran's behavior during their marriage and the circumstances of their separation. The witnesses both testified that the Veteran was abusive toward the appellant, and the appellant and the Veteran intended to reconcile once he dealt with his alcoholism problems. They also testified that the appellant was confused, and the attorney at the time obtained a divorce from the Veteran without her consent. The appellant testified that the attorney who represented her during the legal separation and dissolution proceedings has retired is not available to contact or obtain further information. The evidence of record includes a certificate of marriage between the Veteran and the appellant dated in April 2002. The Veteran's certificate of death reflects that he died in August 2007 as a result of cirrhosis, and significant conditions contributing to death included chronic alcoholism. His status was listed as "divorced." Both of these documents were issued by the State of Colorado. Other official documents of record include a petition for legal separation signed by the appellant that is dated in October 2006 and filed in November 2006. This petition indicates that there were two proceedings that could affect the current proceedings: domestic violence and first degree assault dated in February 2006, and a civil protection order dated in November 2006. This is consistent with the testimony that the Veteran was abusive toward the appellant shortly before they stopped living together and she filed for legal separation, leading to divorce. There is also a document entitled "Permanent Orders" that includes a decree of dissolution of marriage (divorce) dated April [redacted], 2007, from the Jefferson County District Court in the State of Colorado. Although there is no written signature on the decree, it indicates that an attachment shows the signature date. The attachment is of record and shows that it was reviewed and signed by the officiating judge on April [redacted], 2007. Although the appellant argues that she did not sign any decree of dissolution or divorce, this is not required for a valid decree. Rather, she signed the original petition for legal separation, and the April 2007 decree of dissolution shows that the appellant's attorney orally moved to convert the original petition for legal separation to a petition for dissolution of marriage, which was granted. The decree further indicates that the appellant was present in court with her attorney at the time and testified in response to questions from both her attorney and the officiating judge, as well as offered exhibits to support her case. The court found that it had jurisdiction over the Veteran due to his filing a response to the petition for legal separation. The court found that the marriage was irretrievably broken and entered a decree of dissolution of the marriage. The decree also indicates that a temporary civil protection order that had been issued to restrain the Veteran from having any contact with the appellant was made permanent as part of the dissolution decree. In January 2007, after the petition for legal separation, but prior to the dissolution decree, the appellant's attorney during the legal proceedings contacted VA to request apportionment of the Veteran's benefits on the appellant's behalf, noting that the Jefferson County District Court had ordered the Veteran to pay temporary maintenance and back maintenance. Subsequently, after the decree of dissolution was entered, in June 2007, the appellant's attorney during the legal proceedings again contacted VA to request apportionment of the Veteran's benefits. He stated that the appellant was the Veteran's "former wife" pursuant to the April 2007 order and decree by the Jefferson County District Court, and that the court had approved a permanent order of back maintenance and future maintenance, and authorization of payment of all such obligations through his VA check. This summary of the facts and proceedings is consistent with the April 2007 orders and decree from the court. As such, the evidence clearly shows that the appellant and the Veteran were married for approximately five years, and were divorced approximately four months prior to the Veteran's death in August 2007. Although she may have been confused about the proceedings, a divorce decree was entered in April 2007 by a court of competent jurisdiction in the state in which the Veteran and the appellant resided at the time. See 38 C.F.R. § 3.205(b) (Proof of divorce can be established by a certified copy or certified abstract of final decree of divorce specifically reciting the effects of the decree.); 38 C.F.R. § 3.206(a) (In cases where recognition of a divorce decree is brought into question by a party thereto, where the issue is whether the Veteran is single or married (dissolution of a subsisting marriage), there must be a bona fide domicile in addition to the standards of the granting jurisdiction respecting validity of divorce). The appellant was represented by an attorney during all legal proceedings related to the divorce decree, and there is no indication or suggestion that the decree has been set aside by a court of competent jurisdiction. There is also no indication that the decree of dissolution (divorce) would be invalid under the applicable state laws. In this regard, the Board has reviewed the Colorado Revised Statutes relating to Title 14 Domestic Matters, Article 10, Uniform Dissolution of Marriage Act. In particular, Colo. Rev. Stat. Ann. § 14-10-106 (West 2002), sets forth the requirements for a decree of dissolution or legal separation. The April 2007 divorce decree and other evidence of record indicates that such requirements were met in this case. In particular, both parties were domiciled in the State of Colorado for at least 91 days before the proceedings commenced, the court found that the marriage was irretrievably broken, and at least 91 days had elapsed since the court acquired jurisdiction over the Veteran (as respondent) due to the Veteran's entering an appearance through his attorney and by filing a response to the petition for legal separation. There were no children of the marriage, and the court approved maintenance of the appellant. Further, pursuant to subsection (2) of this statute, "[i]f a party requests a decree of legal separation rather than a decree of dissolution of marriage, the court shall grant the decree in that form unless the other party objects." Here, the April 2007 decree expressly indicates that the appellant's attorney moved to convert the petition for legal separation to a petition for dissolution of marriage, in the appellant's presence. Additionally, as provided in Colo. Rev. Stat. Ann. § 14-10-110, the April 2007 decree indicates that the court made a finding that the marriage was irretrievably broken after a hearing at which the appellant testified and presented exhibits. Accordingly, to the extent that the appellant argues that the April 2007 decree of dissolution of marriage was invalid, the undisputed facts do not support such a finding based on application of the pertinent laws. As such, the evidence establishes that she was not married to the Veteran at the time of his death. The Board has considered the appellant's assertions that the Veteran's abuse and other behavior led to their separation, with no fault by the appellant. This appears to be consistent with the other evidence of record, including testimony from the other lay witnesses and the issuance of temporary and permanent restraining orders against the Veteran. The appellant and her representative assert that she should be considered the Veteran's surviving spouse despite the divorce decree based on 38 C.F.R. § 3.50 and the reasoning in Gregory v. Brown, 5 Vet. App. 108 (1993). In Gregory, the United States Court of Veterans Appeals (now the Court of Appeals of Veterans Claims) identified a two-part test to determine whether a spouse can be deemed to have continuously cohabited with a Veteran even if a separation has occurred. 5 Vet. App. at 112. First, the spouse must be free of fault in the initial separation. Id. Second, the separation must have been procured by the Veteran or due to his misconduct, with the fault determination based on the conduct at the time of separation. Id. The Court emphasized that the "without fault" requirement of the law was not a continuing one. Id. Rather, fault, or the absence of fault, is to be determined based on the conduct at the time of separation. Id. The Court stated: Certain conduct subsequent to the time of separation may be relevant in an appropriate case with respect to the question of fault at the time of separation, but the mere acts of seeking divorce and failing to reconcile are not in and of themselves relevant to such question, and, standing alone, do not constitute evidence of fault at the time of separation. Certainly, if a spouse has been physically and emotionally abused and separates from the abuser, the abused spouse's acts of initiating a divorce and refusing to reconcile would not be competent evidence to demonstrate fault on the part of the abused spouse at the time of separation. Id. In Gregory, there was only an interlocutory judgment of divorce, and "[n]o final judgment of divorce was entered prior to the veteran's death." Id. at 110. In contrast, in this case, a final or permanent order of dissolution of marriage (divorce) was entered in April 2007, prior to the Veteran's death. Pursuant to Colo. Rev. Stat. Ann. § 14-10-120(1), the decree of dissolution of marriage became final when entered, subject to the right of appeal. There is no indication of appeal in this case; rather, the Veteran's death certificate indicated that he was divorced, and the appellant's petition was granted to obtain the divorce. As such, regardless of the reasons for the initial separation, the appellant and the Veteran were not legally married as of April 2007, prior to his death, and Gregory is not persuasive. The appellant has not contended that she remarried the Veteran prior to his death. Further, they cannot be considered to have reestablished a "deemed valid" marriage for VA purposes after the divorce decree. Where an attempted marriage is invalid by reason of legal impediment, it may be "deemed valid" if: (a) the attempted marriage occurred one year or more before the Veteran died; and (b) the claimant entered into the marriage without knowledge of the impediment; and (c) the claimant cohabited with the Veteran continuously from the date of the attempted marriage until death; and (d) no claim has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits. 38 U.S.C.A. § 103(a); 38 C.F.R. § 3.52. Here, there were only approximately four months between the April 2007 divorce decree and the Veteran's death in August 2007. As such, to the extent the appellant may be considered to have cohabitated with the Veteran when considering that the initial separation was due to the Veteran's misconduct through no fault of the appellant, the deemed valid marriage provisions are still not met. In sum, the appellant and the Veteran were not married at the time of the Veteran's death, and they had not remarried each other or cohabitated with each other at any time after their divorce in April 2007. As such, the appellant has no entitlement under the law to death benefits as a surviving spouse. 38 U.S.C.A. § 101(3); 38 C.F.R. § 3.50(b); see also Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994). The Board is sympathetic to the appellant's assertions that the conduct of the Veteran during their marriage led to their separation and divorce. However, the Board is bound by the law in the payment of monetary compensation and cannot grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994); Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). ORDER The appellant is not the surviving spouse of the Veteran; the appeal is denied. ____________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs