Citation Nr: 1341595 Decision Date: 12/17/13 Archive Date: 12/31/13 DOCKET NO. 13-08 819 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Whether the appellant has eligibility for VA death benefits as the Veteran's surviving spouse. WITNESSES AT HEARING ON APPEAL Appellant; Appellant's son and his spouse; and P. H. ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran had active military service from September 1948 to April 1957. The Veteran died in May 1974. The appellant claims she is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. The appellant, along with her son and his spouse, and P. H., her former attorney, appeared and testified at a Board video conference hearing held before the undersigned Acting Veterans Law Judge in November 2013. A copy of the transcript of this hearing has been associated with the claims file. A review of the transcript demonstrates that the Veterans Law Judge complied with the requirements set forth in Bryant v. Shinseki, 23 Vet. App. 488, 491-93 (2010). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The appellant and the Veteran were married in October 1951 in Massachusetts. 2. The Veteran died in May 1974 from multiple sclerosis, for which he was service-connected. From December 1961 until his death, the Veteran essentially resided as a patient at the VA Hospital in Manchester, New Hampshire. 3. In January 1970, the appellant advised the RO that she had instituted divorce proceedings against the Veteran. In April 1970, the appellant obtained a divorce from the Veteran in Mexico. Shortly thereafter, she married her second husband, in Nova Scotia, and thereafter resided with him and held herself out to be his spouse until he died in April 2011. 4. Although the initial separation of the appellant and the Veteran may be deemed to have been by consent due to his deteriorating health requiring essentially full-time hospitalization, the appellant's actions in seeking a divorce from the Veteran (even if not legal) and remarrying and cohabitating with her second husband and holding herself out as being married to her second husband while the Veteran was still alive demonstrates that she intentionally deserted the Veteran. 5. The appellant did not continuously cohabitate with the Veteran from the date of their marriage to the date of his death. CONCLUSION OF LAW The continuous cohabitation requirement has not been met for establishing the appellant's eligibility for VA death benefits as the Veteran's surviving spouse. 38 U.S.C.A. §§ 101(3), 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.1, 3.5, 3.50, 3.53, 3.54, 3.102 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance Requirements VA's duties to notify and assist claimants in substantiating a claim for VA benefits are described in 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 and 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and notify the claimant and his or her representative, if any, of what information and evidence not already provided, if any, is necessary to substantiate, or will assist in substantiating, each of the five elements of the claim including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present case, the Board acknowledges that formal notice was provided to the appellant as initially her claim was denied as a matter of law because the evidence submitted showed she was married. See VAOPGCPREC 5-2004 (June 23, 2004). However, subsequent to the initial adjudication of her claim, the appellant was advised via email in November 2011 that "a widow of a veteran who died from a service-connected condition would regain her eligibility for DIC if she remarried before the age of 57 but the second marriage ended in the death of the husband." Subsequently, the appellant submitted a death certificate that showed her second husband had died in April 2011. Thereafter, her status as the Veteran's surviving spouse was readjudicated and again denied in a January 2013 Statement of the Case. The denial this time was that the evidence showed that the appellant divorced the Veteran before he passed away. The Statement of the Case also provided the appellant with the laws and regulations relating to the issue on appeal. On her VA Form 9, the appellant provided a statement setting forth that she never went through with the divorce and did not advise VA that she had divorced the Veteran but merely asked regarding the consequences of divorcing him and that someone at VA must have taken that as evidence that she divorced the Veteran. She stated that she provided a revised death certificate for the Veteran showing that she was his spouse at the time of his death. Subsequently, in a written statement and during testimony at the Board hearing, the appellant testified that she had gotten a divorce from the Veteran in Mexico but had learned afterward that it was not valid in New Hampshire. She also admitted that, although she married her second husband while the Veteran was alive, that this marriage was also not legal. She argued, however, that she did not desert the Veteran and continued to take care of him (feeding him twice daily and bringing him home from the hospital on the weekends) until his death despite holding herself out as being married to her second husband. The Board notes that, even if there was insufficient notice, VA can show that the error did not affect the essential fairness of the adjudication. To do this, the VA must show that the purpose of the notice was not frustrated, such as by demonstrating that any defect was cured by actual knowledge on the part of the claimant, that a reasonable person could be expected to understand from the notice what was needed, that a benefit could not have been awarded as a matter of law, or perhaps where the claimant has stated that he or she has no further evidence to submit, or where the record reflects that VA has obtained all relevant evidence. There must be a demonstration that there was no error. See Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court of Appeals for Veterans Claims (Court) to be persuaded that no prejudice resulted from a notice error, the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair. See also Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). The Court has stated that "[n]othing in law or common sense supports a conclusion that the Court should put on blinders and ignore [the 'extensive administrative appellate process'] or a conclusion that a notice error prior to the initial decision by the Secretary could not be rendered non- prejudicial when the full panoply of administrative appellate procedures established by Congress are provided to the claimant. It is well settled that a remand is not warranted when no benefit would flow to the claimant." See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) In the present case, the Board finds that the appellant demonstrated she had actual knowledge of what was needed to establish the claim. Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrates an awareness of what was necessary to substantiate his or her claim. See Dalton; Short Bear v. Nicholson, 19 Vet. App. 341, 344 (2005). The mere act of submitting evidence does not demonstrate actual knowledge. See Vazquez-Flores. The appellant's statements and testimony show she had actual knowledge of what was needed to establish the claim. Furthermore, the November 2011 email advised the appellant of the basic means of establishing entitlement to DIC when the widow of a Veteran had remarried and the appellant was provided with the applicable laws and regulations in the January 2013 Statement of the Case. Consequently, the Board finds that the defect in providing notice to the appellant has been cured by her actual knowledge. Furthermore, the Board finds that VA has obtained all evidence relevant to the appellant's claim and that further efforts to notify and assist her would not result in any additional evidence. Thus the Board finds that the purposes behind VA's notice requirement have been satisfied, and VA has satisfied its "duty to notify" the appellant, and any error in this regard is harmless. With respect to VA's duty to assist, VA is only required to make reasonable efforts to obtain relevant records that the claimant has adequately identified to VA. 38 U.S.C.A. § 5103A(b)(1). All efforts have been made to obtain relevant, identified and available evidence, and VA has notified the appellant of any evidence that could not be obtained. VA, therefore, has made every reasonable effort to obtain all records relevant to the appellant's claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. In the present case, as the issue is not a medical one, obtaining a medical examination or opinion was not necessary in deciding the claim. Thus, the appellant is not prejudiced by VA not obtaining an examination or opinion. Thus, the Board finds that VA has satisfied its duties to inform and assist the appellant at every stage of this case. Additional efforts to assist or notify her would serve no useful purpose. Therefore, she will not be prejudiced as a result of the Board proceeding to the merits of her claim. II. Analysis The appellant is seeking entitlement to Dependency and Indemnity Compensation (DIC) based upon service connection for the cause of the Veteran's death. DIC is payable to a surviving spouse, child, or parent either because of a service-connected death occurring after December 31, 1956, or pursuant to the election of a surviving spouse, child, or parent, in the case of such a death occurring before January 1, 1957. 38 C.F.R. § 3.5. The Board notes that, in the present case, the Veteran died in May 1974 due to multiple sclerosis for which he was service-connected at 100 percent during his lifetime. In addition, for purposes of DIC claims filed by the Veteran's children, service connection for the cause of the Veteran's death was established by rating decision issued in October 1974. Thus, the question in the present appeal is not whether service connection for the cause of the Veteran's death is warranted, but whether the appellant has established that she has status as the Veteran's surviving spouse. After considering all the evidence, the Board finds that the preponderance of the evidence is against a finding that the appellant is entitled to status as the Veteran's surviving spouse. Under 38 U.S.C.A. § 101(3), the term "surviving spouse" means a person of the opposite sex who was the spouse of a veteran at the time of the veteran's death, and who lived with the veteran from the date of marriage until 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 surviving spouse. 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). 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 that did not show 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) . In Alpough v. Nicholson, 490 F.3d 1352, 1357 (Fed. Cir. 2007), the Court of Appeals for the Federal Circuit (hereafter "Federal Circuit") held that separation by mutual consent generally does not constitute desertion by a potential surviving spouse, such that a claimant is exempted from the continuous cohabitation requirement under 38 C.F.R. § 3.53(b) for the purpose of establishing recognition as the surviving spouse for death benefits. The Federal Circuit explained that under a proper interpretation of 38 U.S.C.A. § 101(3), a spouse can qualify as a surviving spouse if a separation was 'procured' by the veteran without the fault of the surviving spouse, even if there was no misconduct by the veteran. Id. Therefore, under a proper interpretation of section 3.53(b), a separation by mutual consent, without an intent to desert, does not break the continuity of cohabitation. Id. at 1358. However, the Federal Circuit added that a separation by mutual consent would constitute desertion if the separation was induced by misconduct or communication of a definite intent to end the marriage by the surviving spouse; thus breaking the continuity of cohabitation and precluding surviving spouse recognition in such instance. Id. at 1357. In another decision, the Court of Appeals for Veterans Claims (Court) has held that one claiming to be the spouse of a veteran has the burden to come forward with a preponderance of evidence of a valid marriage under the laws of the appropriate jurisdiction. Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). In her statement on her VA Form 9, the appellant initially stated that she never divorced the Veteran nor did she advise VA that she did. Rather, she stated that she contacted VA and inquired as to what would happen if she were to divorce the Veteran and someone at VA jumped to the conclusion that she had divorced the Veteran and cut off her benefits. She stated that, since the Veteran was incompetent and could not sign divorce papers, it would have been complicated to get a divorce so she never went through with it. She stated that she brought the mistake on the Veteran's death certificate (i.e., that he was divorced) to the attention of the State of New Hampshire, which searched its records and confirmed that there was no divorce and issued a corrected death certificate showing her as his spouse. She stated she remarried in 1974 after the Veteran's death and her second husband is deceased. She thus claimed that has regained her status as the Veteran's surviving spouse. In her August 2013 written statement and hearing testimony, however, the appellant provided a different recollection of events. In her written statement, she admitted that she wanted out of the marriage with the Veteran and that she asked his parents if it was alright if she divorced him because she had met someone else she had become fond of (i.e., her second husband) and wanted to move on with her life. She stated that she consulted an attorney about the divorce but was advised that she would have to get a guardian appointed for the Veteran because he was incompetent and could not sign anything and she did not want to do that. She stated that she saw an ad for Mexican divorces and went to Juarez, Mexico to get a divorce. She further stated that, when she came back to New Hampshire, she saw her attorney again who told her that a Mexican divorce was not legal in New Hampshire and advised her to go back to VA and have her benefits reinstated. She did not want to create more problems and was able to get by without the money so she left matters alone. She further stated that she used her second husband's name even though she knew it was wrong and not legal, and that she lived together with her second husband while the Veteran was still alive. She stated that she did not want the world or her children to think that she was "living in sin" as the world would see it in 1970. She stated, however, that her and her children were with the Veteran until the day he passed. She and her second husband married four months after the Veteran's death in August 1974. At the Board hearing, she again admitted that she went to Mexico and got a divorce from the Veteran; however, she stated that, when she came back, she and her second husband went to Canada to get married. She stated it was after that when she talked with her attorney again and found out that the Mexican divorce was not acceptable in New Hampshire and that he advised her that she should go back to VA and tell them what happened. She stated that she had, however, already told everybody that she was divorced and that morally all of a sudden she looked like a bad parent, so she and her second husband decided to not tell anyone and he would raise the children and they would just stay the way they were. She admitted that she knew she was not legally married to her second husband at that time because her attorney told her the divorce and remarriage were not legal. She also stated that she continued to hold herself out to her family and the community as being divorced from the Veteran and married to her second husband while the Veteran was still alive, even though she knew it was not true, because she felt that was the way she had to live given her religious beliefs and society at that time. She also testified that, after the divorce and remarriage, she continued to go to the hospital twice a day to feed the Veteran lunch and dinner and to bring him home every weekend. She stated that she felt like she treated the Veteran like a husband should be treated and that her whole life revolved around him. Finally, the Board notes that, at the hearing, the appellant's former attorney, P.H., testified on behalf of the appellant. He testified that, while still a practicing attorney around the late 1960s early 1970s, the appellant sought his counsel regarding divorcing the Veteran. He advised her that New Hampshire at that time was a so-called fault strict state, i.e., that there had to be a fault ground in order to get a divorce, which she did not have and, thus, there was no chance she could get a divorce from the Veteran. He also told her that, even if she could, the court would appoint a guardian ad litem for the Veteran and she would have to pay for that in addition to instituting the proceedings. He further testified that the appellant came in several years later, probably the early to mid 1970s, and asked him what the effect of a Mexican divorce was in New Hampshire and he explained to her that New Hampshire would not honor a "so-called quickie Mexican divorce." In addition to the above statements and testimony, the claims file contains the following information and evidence from 1970 until the Veteran's death in 1974. A statement from the appellant to VA dated in January 1970 in which she advised VA that she had instituted divorce proceedings against the Veteran but requested that she be appointed his legal custodian once the divorce became final so that she may continue to care for him. She also stated that the Veteran had been hospitalized at the VA Hospital in Manchester, New Hampshire for the past eight years. Finally, she indicated she wished to apply for an apportionment of the Veteran's compensation for her four minor children. A decision was rendered on her claim for an apportionment in February 1970 granting her an apportionment of $390.50 for her and her children. Thereafter, however, the appellant was sent notice advising her of an adjustment to her benefits stating: "Since you are estranged from your husband, you are no longer entitled to compensation as wife of veteran. Fifty per cent of the veteran's award is apportioned to you, and the balance is being paid to Director, VA Hospital, who is acting in a fiduciary capacity. Please inform us promptly when you obtain final divorce decree." In August 1970, the RO received a Memorandum dated in July 1970 from the Chief, Medical Administration Division, of the VA Hospital in Manchester, New Hampshire, advising it that, on July 2, 1970, a representative from the local Social Security office brought to its attention a letter he had received from the appellant. In it she had stated that she obtained a divorce from the Veteran on April [redacted], 1970 in Mexico and had since remarried in Nova Scotia. Further she stated she no longer wished to be responsible for the Veteran's Social Security checks. Consequently, the Social Security office had withheld any further payment pending an alternate. In response, the RO sent a letter to the appellant dated August 24, 1970, advising her that it had received notice that she had divorced the Veteran on April[redacted], 1970, in Mexico and that she had remarried. It requested she provide the following information: (1) if she still had custody of the children; (2) her remarried name; (3) whether the children had any income; (4) what income she and her husband had that may be used to support the children; and (5) to list the necessary living expenses of the children. The letter advised her that, upon receipt of this information, further consideration will be accorded any request for an apportionment on behalf of the children. The appellant promptly responded in a statement dated August 28, 1970. In response to the above questions, she responded: (1) she had the children; (2) her remarried name; (3) the amount of income the children had; (4) that her husband works for a transport company and his income was enough to support the children; and (5) the ages and expenses of the children. She finally stated that she was "really sorry if I received extra money but please believe me it was a misunderstanding." Thereafter, an apportionment of the Veteran's VA benefits was made in the amount of $56 for the children. In May 1974, the VA Hospital in Manchester, New Hampshire, advised the RO of the Veteran's death on May [redacted], 1974. The notice indicates the Veteran's next of kin was his son. By claim received May 31, 1974, the Veteran's son requested reimbursement for burial benefits, which was awarded. Furthermore, a copy of the Veteran's original death certificate issued by the VA Hospital is in the claims file and indicates the Veteran's marital status at time of death was "divorced." In October 1974, the appellant filed for DIC benefits on behalf of her two remaining minor children. In an October 1974 rating decision, service connection for the cause of the Veteran's death was granted. An award of benefits was made directly to one daughter because she was of legal age but receiving Chapter 35 benefits. Another award of benefits was made to the appellant as custodian of her youngest daughter, who was still a minor. The appellant, however, did not file a claim for DIC benefits for herself. After considering all the evidence of record, the Board finds that the preponderance of the evidence is against a finding that the appellant is the Veteran's surviving spouse for purposes of receiving DIC benefits. The Board is sympathetic to the appellant and the situation with the Veteran's illness: he had lost the capacity to recognize her or their children, and he was hospitalized for many years prior to 1970, when the relevant events happened. The Board is also understanding of the situation the appellant found herself in and how the religious and societal mores of the early 1970s would have influenced her decisions at that time with regard to her attempted divorce and remarriage. The Board further commends the appellant for her continuing care of the Veteran after the purported divorce and remarriage. Nevertheless, the Board finds that the preponderance of the evidence demonstrates that the appellant intended to abandon her marriage to the Veteran and, therefore, in essence, she intentionally deserted the Veteran. Having made such a finding, the Board must further conclude that the appellant and the Veteran did not cohabitate until his death and, therefore, the appellant is not entitled to status as the Veteran's surviving spouse. The appellant's intent to desert is evidenced throughout the record. By her own statement in January 1970 to VA, she stated she was in the process of divorcing the Veteran. Furthermore, she advised the Social Security Administration, who advised VA, that she obtained a divorce from the Veteran on April [redacted], 1970, in Mexico and remarried another man shortly thereafter. She has even admitted that the divorce and remarriage were not legal in her August 2013 written and oral testimony, explaining that she wanted a divorce from the Veteran because she had found another man she was fond of and wanted to move on with her life. Furthermore, her intent to desert the Veteran is evidenced by the fact that, despite knowing that her divorce and remarriage were not legal, she continued to hold herself out to her family, VA, the Social Security Administration, and society as the wife of her second husband even though she was still legally married to the Veteran. By her own admission, she used her new husband's name and told no one about the illegality of her divorce and their marriage until after her second husband's death in April 2011. Furthermore, despite the appellant's statements at the hearing that she was a wife to the Veteran in every way, the evidence indicates that she advised the Social Security Administration of her divorce and remarriage because she did not want to be responsible anymore for the Veteran's social security checks. Nor was she responsible for the Veteran's portion of his VA compensation as such was paid directly to the VA Hospital. Thus, she had no financial responsibility for the Veteran. Furthermore, the Board does not see how the appellant could have been a wife in all ways to the Veteran when she was living with and holding herself out as the wife of another man. Rather, the Board finds that she merely continued to be a care giver to the Veteran, going to the hospital to feed him twice a day and taking him home on the weekends. Although the Board commends the appellant on continuing caring for the Veteran, it does not find that such actions override the overwhelming evidence that the appellant no longer desired to be married to the Veteran and took steps to end their marriage, albeit in a way that was not legal (at least in New Hampshire). Furthermore the fact that she remarried and, despite finding out that such marriage was not legal, continued to represent herself as being married to her second husband, is even stronger evidence that the appellant had no intent to continue her marriage with the Veteran despite the fact that she was still legally married to him. In conclusion, while the appellant may have been legally married to the Veteran until his death in May 1974, the preponderance of the evidence demonstrates that they did not continuously cohabitate from the date of marriage to the date of the Veteran's death. Also, the evidence of record does not indicate that the separation was due to the misconduct of or procured by the Veteran without the fault of the surviving spouse. 38 C.F.R. § 3.53(a). Rather the evidence shows that the appellant desired to end her marriage to the Veteran and that she intentionally deserted the Veteran in 1970 to essentially establish her life as the wife of another man. Finally, although the evidence of record shows that the original separation was essentially by mutual consent as it was due to the Veteran's ill health (even if he was not competent to actually give consent), the separation changed in 1970 to one not of mutual consent due to the actions of the appellant. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The appellant's claim of entitlement to VA death benefits as the surviving spouse of the Veteran must be denied. ORDER Eligibility for VA death benefits as the Veteran's surviving spouse is denied. ____________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs