Citation Nr: 1340522 Decision Date: 12/09/13 Archive Date: 12/20/13 DOCKET NO. 10-08 651 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been received to reopen the claim of entitlement to recognition as the Veteran's surviving spouse for purposes of receiving Department of Veterans Affairs death benefits. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Wasik, Counsel INTRODUCTION The Veteran had active duty service from July 1969 to September 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. FINDINGS OF FACT 1. A September 1994 administrative decision determined that the appellant had not established continuous cohabitation within the meaning of 38 C.F.R. § 3.53 in order to qualify as the Veteran's surviving spouse for VA benefits; the appellant did not appeal the decision or submit any pertinent evidence within the appeal period. 2. The evidence added to the record subsequent to the appeal period includes evidence that is not cumulative or redundant of evidence of record at the time of the prior denial and relates to an unestablished fact necessary to substantiate the claim. 3. The appellant and the Veteran were married to each other in 1980 and the appellant was the Veteran's lawful spouse at the time of his death in October 1989. 4. The Veteran and the appellant were living apart at the time of the Veteran's death but this was without fault on the part of the appellant. CONCLUSIONS OF LAW 1. New and material evidence has been presented to reopen the claim of entitlement to recognition as the Veteran's surviving spouse for purposes of receiving Department of Veterans Affairs death benefits. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 2. The criteria for the appellant's recognition as the surviving spouse of the Veteran for VA purposes have been met. 38 U.S.C.A. §§ 101, 1304, 1310, 1541, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.5, 3.50, 3.54 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Claim to Reopen A. Legal Criteria Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) recently interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). B. Analysis In a September 1994 administrative decision, the RO determined that the appellant had not established continuous cohabitation with the Veteran within the meaning of 38 U.S.C.A. § 3.53. The appellant did not contest this determination or submit any pertinent evidence within the appeal period. The evidence received subsequent to the appeal period includes a February 2009 statement from H.K. which indicates that the author knew that the appellant and Veteran were married but, after the marriage, the Veteran became sick and had to leave town. The author also noted the Veteran continued you stay in touch with the appellant and also to send money. This evidence is not cumulative or redundant of the evidence previously of record. Move over, it relates to an unestablished fact necessary to substantiate the claim. That is, it tends to show that the separation of the appellant and the Veteran was not due to any fault on the part of the appellant. Therefore, it is new and material, and reopening of the claim is in order. II. Reopened Claim A. Legal Criteria VA death benefits may be paid to a surviving spouse who was married to the veteran: (1) one year or more prior to the veteran's death, or (2) for any period of time if a child was born of the marriage, or was born to them before the marriage. 38 U.S.C.A. § 1102; 38 C.F.R. § 3.54. The term "surviving spouse" means a person of the opposite sex (1) whose marriage to the veteran was valid under the law of the place of residence at the time of the marriage or when the right to benefits accrued; (2) who was the spouse of a veteran at the time of the veteran's death; (3) who lived with the veteran continuously from the date of marriage to the date of the veteran's death (i.e. continuous cohabitation); (4) and who, except as provided in 38 C.F.R. § 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 herself out openly to the public to be the spouse of such other person. 38 U.S.C.A. § 101(3); 38 C.F.R. § 3.50(b). 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. The statement of the surviving spouse as to the reason for the separation will be accepted in the absence of contradictory information. 38 C.F.R. § 3.53(a). B. Analysis Initially, the Board notes that the appellant submitted a copy of a valid marriage certificate. The fact that the Veteran and the appellant were married is not in dispute. In an October 1980 letter from a private physician, it was reported that the Veteran informed the author that he had married again within the past year but was currently separated. The Veteran did not know where his ex-wife or five or six year old son was. It was recorded that the Veteran's wife told the Veteran to find someone else and that she was going to do the same and that the problem between them was the Veteran's drinking. The Veteran was ambivalent about his feelings for his current wife, saying he loved her enough to kill her. The physician was located in Pensacola, Florida. In August 1981, the private physician wrote that the Veteran and his current wife were separated. The Veteran's two month old son died in February 1981 of sudden infant death syndrome and the Veteran was still bitter about the baby's death and felt that his wife was in some way responsible. The Veteran and his wife generally had some sort of argument anytime they were together. The Veteran felt that his wife liked to run the streets too much and the Veteran liked to be at home. He had spent one month in jail after a fight with his wife. The Veteran was living with his aunt. A June 1983 VA hospitalization report indicates that the Veteran had a visit from his family which was his mother and son. The Veteran wanted to go home and stay with his son. The Board notes that the Veteran and the appellant had a son together but the son died. This record cannot refer to the appellant's child with the Veteran. A June 1983 VA clinical record includes the annotation that the Veteran was married from November 1973 until 1979. He remarried in 1980 but this lasted only one month. The document indicates that the Veteran was separated but not divorced from his second wife. One son was born who died of SIDS. An October 1983 VA social work report includes the annotation that the Veteran was twice married with the second time being in 1980 but he had been separated for one year. At the time of an October 1984 VA examination, the Veteran reported that he had been married two times, the first time from 1973 until 1979 and he had a son from the first marriage. He was married a second time in 1980 but had separated since the first month of marriage. The Veteran was in receipt of VA compensation which was went to his sister and who paid his rent and doled out money to meet the Veteran's needs. A December 1986 private medical record reveals the Veteran reported he had lived in Champaign since 1982. He was living with friends. He had been separated from his second wife for four years, since moving to Champaign. At the time of a March 1987 VA examination, it was written that the Veteran's sister was his guardian and was in receipt of the Veteran's money. The sister pays the Veteran's rent. It was written that the Veteran was divorced at that time. A Certificate of Death associated with the claims file reveals the Veteran died in October 1989. The certificate indicates that the Veteran was divorced. In March 1991, the appellant submitted her initial application for DIC benefits. She indicated on the form that she was the surviving spouse. The appellant wrote on her application that she was not continuously living with the Veteran from the time of marriage to the time of his death. The appellant wrote that their separation took place in 1982 and the Veteran moved to Illinois from Florida. He never returned to live with the appellant. The appellant wrote that the Veteran was drinking heavily and couldn't stand the pressures of married life. Their baby died in 1980 at the age of 2 months. In January 1993, the appellant submitted another claim for DIC. She indicated that she married the Veteran in March 1980 and that she was not continuously living with the Veteran from the time of marriage to the time of his death. The appellant wrote that the separation was not legally certified and that they had been separated since 1986 until the date of the Veteran's death. The Veteran relocated due to health reasons and that provisions were made financially each month for the appellant. On a VA form which was signed by the appellant in May 1993, she indicated that she had not remarried since the Veteran had died. She included the birth certificates and Social Security cards for two of her children who were born in August 1976 and October 1978, prior to the appellant and the Veteran's marriage. No father is listed on the Birth Certificates. In August 1994, the appellant's mother submitted a statement indicating that the appellant and the Veteran were married in March 1980. In February 1982, the two-month old son of the appellant and the Veteran died. The author opined that the loss of the child affected the Veteran. The Veteran left Florida to seek help in accepting the death of his son. The author wrote that, in October 1989, the Veteran called her and spoke with her and her son stating that he planned to come home within the next month. The Veteran never made it home. In August 1994, the appellant wrote that she had only been married one time and that was to the Veteran. They were not living together continuously from the date of marriage until the date of the Veteran's death but they did live happily for several years. She wrote that, after their son's death in 1980, the Veteran was placed in a deep depression and he began to drink more. The depression continued causing the Veteran to want to distance himself from anything which reminded him of the baby. The Veteran relocated to Illinois. The appellant did not know where the Veteran was living until the Veteran called one time to inform the appellant that he was living at a VA hospital. The appellant wrote that the Veteran informed her in their last telephone conversation that he had broken his leg and when he got out of the hospital, he was going to return home to Pensacola so that the appellant could help the Veteran heal himself. It was months later that the appellant found out about the Veteran's death. In August 1994, the appellant's brother wrote that the Veteran became very depressed in April 1982 after the death of his son. The Veteran stated that he needed to go to the VA hospital in Illinois where he felt that he could get help to deal with the problem and his health. Two months prior to his death, the Veteran phoned the author's mother and told her and the author that he wanted to come home to the appellant and the family. The Veteran reported that he would be in Pensacola the following month but died before he could make it. In a September 1994 statement, in response to an inquiry from VA as to whether the Veteran made any financial provisions for the appellant, she wrote that, from time to time, the Veteran would send small amounts to help the appellant along with the children. The appellant did not have any evidence of receiving support from the Veteran during the separation period. In March 2008, the appellant submitted another claim of entitlement to DIC. She again indicated on the document that she did not live continuously from the time of their marriage until the time of the Veteran's death. The reason provided for the separation was that the Veteran moved to Chicago for treatment at a VA facility. In July 2008, the appellant's brother submitted another statement in support of the appellant's claim. He wrote that the Veteran became very depressed after the death of his son and decided to go to Illinois to a VA hospital to get treatment for his service-connected disability. He called home to the author's mother's house and expressed a desire to come home the next month. When he did not show on the planned date the family began to worry only to find out that the Veteran had died. The couple stayed married and kept in touch with each other during the Veteran's time away and expected to be back together after the Veteran's treatment and recovery. In July 2008, the appellant's mother submitted another statement in support of the appellant's claim. The Veteran and appellant were married in 1980 and seemed very happy. In February 1982, the Veteran's son died. The Veteran left town after the death to get help in coping with and accepting the death of his son. The Veteran kept in touch with the appellant by phone until a few months prior to his death. In October 1989, the Veteran called and spoke with the author and her son and said he planned to come home the next month. In July 2008, the appellant wrote that she married the Veteran in March 1980 and had a wonderful relationship until the death of their son. The Veteran became very disturbed after the death. He had flashbacks of seeing the dead son. The appellant and the Veteran decided the Veteran should seek medical help. The Veteran reported that he trusted the VA doctors in Illinois to help him cope with his problems. The Veteran would call the appellant and discuss his returning home to the appellant and the family. The appellant wrote that the Veteran very much wanted to return home to her but after he made the plans he died. In February 2009, a friend of the appellant wrote that she knew that the Veteran had to leave town because he was sick but he still called the appellant and sent money home. The Board finds that the above evidence is in relative equipoise as to whether the appellant was at fault in the separation. The Veteran's statement to one health care provider indicates that the separation could have been due to fault of the appellant based on the one statement that the Veteran thought the appellant liked to run the streets too much but this was not elaborated on. The other evidence pertaining to the Veteran's statements are not clear as to whether there was any fault on the part of the appellant. The majority of the lay statements submitted in support of the claim indicate that the Veteran left after having problems with the death of his son. This does not suggest fault on the part of the appellant. The fact that the Veteran's sister alleged she had never heard of the appellant does not change the outcome of this decision. There is evidence that the Veteran and the appellant were actually married as documented by a copy of the Marriage License associated with the claims file. The existence of the marriage license reduces the probative value of the Veteran's sister's statement. The pertinent evidence referencing the Veteran's thoughts and intentions during his lifetime regarding the appellant all indicate that the Veteran left the appellant without any intention to return and but very little of this evidence suggests that the separation was due to fault on the part of the appellant. As set out above, the Board notes the statement of the surviving spouse as to the reason for the separation will be accepted in the absence of contradictory information. In this case, the contradictory information is insufficient to outweigh the probative value of the appellant's assertions. Accordingly, entitlement to recognition as the Veteran's surviving spouse for purposes of VA benefits is in order. ORDER The Board having determined that new and material evidence has been received, reopening of the claim of entitlement to recognition as the Veteran's surviving spouse for purposes of receiving Department of Veterans Affairs death benefits is granted. Entitlement to recognition as the Veteran's surviving spouse for purposes of receiving Department of Veterans Affairs death benefits is granted. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs