Citation Nr: 1309893 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 09-26 473 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to death pension benefits. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service from June 1971 to July 1978 and from March 1980 to June 1989. He died on January [redacted], 2007. This matter comes before the Board of Veterans' Appeals (Board) from an October 2007 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which deferred determining whether the appellant was the surviving spouse of the Veteran but determined that even if the appellant was the surviving spouse of the appellant, her countable income was excessive for the purpose of receiving death pension benefits. After development to determine if the appellant was the surviving spouse of the Veteran, as explained further below, the RO sent the appellant a letter dated October 29, 2009, contained in Virtual VA, stating that VA records indicated that she was the surviving spouse. Also, in the July 2012 supplemental statement of the case, the RO acknowledged that documentation had been received establishing that the appellant was the surviving spouse of the Veteran. In her substantive appeal, the appellant requested a Board hearing before a Veterans Law Judge; however, in December 2012 she withdrew her request for a hearing. The Board notes that there are emails between the appellant, a representative from the Social Security Administration, and VA personnel partly written in Spanish; however, the Board finds that it is not necessary to obtain translations of such prior to issuing a decision as they pertain to the appellant's efforts to obtain an amended death certificate (which was ultimately obtained and submitted to VA) and inquiries regarding the status of her claim. Therefore, there is no prejudice to the appellant in the Board proceeding with the adjudication of her claim at this time. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal, except as otherwise stated herein. FINDINGS OF FACT 1. The Veteran and the appellant were married in June 1976 but they separated in 1992. 2. The Veteran died on January [redacted], 2007, and at the time of his death he was not cohabitating with the appellant. 3. The separation between the appellant and the Veteran was not due to any fault of the appellant, she did not desert the Veteran, and the separation did not result from misconduct or communication of a definite intent to end the marriage by the appellant, and the continuity of cohabitation remained unbroken under VA regulation. 4. The appellant's income exceeds the applicable statutory levels for the annualized period in which the income was received. CONCLUSION OF LAW The appellant is the recognized spouse of the Veteran but she does not meet the income criteria for receipt of payment of nonservice-connected death pension benefits. 38 U.S.C.A. §§ 101, 103, 1503, 1521, 1541, 5110 (West 2002); 38 C.F.R. §§ 3.1(j), 3.3, 3.5, 3.23, 3.50, 3.53(a), 3.271, 3.272, 3.400, 3.1000 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), became law in November 2000 and implementing VA regulations are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2012). The VCAA duty to notify requires VA to notify a claimant and representative, if any, of the information and medical or lay evidence needed to substantiate a claim. When VA receives a complete or substantially complete application, it will notify the claimant of any needed information and evidence, and VA will inform the claimant which information and evidence, if any, the claimant is to provide and which, if any, that VA will attempt to obtain. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159. Also, the VCAA and its implementing regulations provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. Under these provisions, VA is required to make reasonable efforts to help the claimant obtain relevant records. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R § 3.159. See Quartuccio v. Principi, 16 Vet. App. at 183 (2002). In the instant case, the Board notes that the appellant was not provided with pre-adjudicatory VCAA notice regarding her claim for death pension. However, as the Board's determination herein that she is entitled to recognition as the Veteran's surviving spouse is completely favorable, no prejudice results as a lack of VCAA notice. Additionally, with respect to the Board's determination that she is not entitled to death pension benefits as her income exceeds the applicable statutory levels for the annualized period in which the income was received, the facts are undisputed and the appellant's arguments are limited to her interpretation of governing legal authority. The United States Court of Appeals for Veterans Claims (Court) has recognized that enactment of the VCAA does not affect matters on appeal from the Board when the question is limited to statutory interpretation. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000). Additionally, VA's Office of General Counsel has held that VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit. VAOPGCPREC 5-2004. Here, the essential and dispositive facts are not in dispute. Accordingly, for the reasons stated here, because the undisputed facts preclude the appellant's eligibility for death pension benefits, there is no prejudice to her on the part of the RO in not providing her with the required preadjudication VCAA notice. II. Background In the instant case, the Veteran and appellant were married in June 1976. There is no evidence that either party had been previously married. In the Veteran's original claim for VA compensation benefits in July 1991, he reported that he resided in Spain and was married to that appellant, having been married in June 1976. The marriage had had not been terminated, although they were separate and did not live together. They had three daughters. On VA examination in May 1992 the Veteran reported that he lived in Spain and was married. He had three children. In a May 1993 letter to his U.S. Senator the Veteran reported that after his 1989 service discharge he had resided in Spain with his "foreign national" wife. He and his wife were now legally separated. In the Veteran's May 1999 claim for service connection for post-traumatic stress disorder (PTSD), VA Form 21-526, he reported that he was divorced from the appellant, having done so in May 1998. On VA examination in September 2001 the Veteran reported that he was divorced. His ex-wife resided with their three daughters in Spain. In an April 2002 letter the Veteran reported that in 1989 he had been married and had relocated to Spain with his wife. He had been divorced in 1992. The Veteran died on January [redacted], 2007, due to pathology of the liver (described on the death certificate as end stage "serous" of the liver) of one year duration. Another significant condition contributing to his death was diabetes. At his death, the Veteran was service-connected for chondromalacia of the left knee with degenerative joint disease (DJD), rated 10 percent disabling; right knee patellofemoral syndrome with chondromalacia, rated 10 percent disabling; and noncompensable ratings were assigned fro a hiatal hernia and for residuals of an excision of a pilonidal cyst. He had a combined disability rating of 20 percent. An original death certificate was issued in February 2007 and states that the Veteran, having been born in May 1953, was 54 years of age at his death and was divorced. The immediate cause of death was end-stage "serosis" of the liver of 1 year duration. Another significant condition contributing to his death was diabetes. No autopsy was performed. Subsequently, a corrected death certificate, which was issued in July 2007, reflects that the Veteran was 53 years of age and that at his death he was married to the appellant. Attached to the appellant's application, VA Form 21-534, received in March 2007, was a copy of her certificate of marriage to the Veteran, reflecting their marriage in June 1976. In the application she reported that she had only been married once and had not remarried since the death of the Veteran. She reported that they had separated in September 1994 but had never divorced. She reported that her only income was from her employment and was 13,200.00 Euros per year. She did not list any deductible expenses. Attached to a November 2007 letter from the appellant was a copy of her marriage certificate to the Veteran. She stated that she had applied for a legal separation after he left Spain for the United States in 1992. He had left their three daughters in her care. In the years thereafter, he had lived with his mother and neither he nor anyone in his family had attempted to give the impression that she and the Veteran were divorced. On file is a Report of General Information which reflects that an attempt was made in two counties to locate any record of a divorce decree under the Veteran's name but none was found. In an attempt to obtain a certified copy of the corrected death certificate, a June 2012 letter from the service representative states that he was unable to reach any family member in Spain. He had spoken with the funeral director that performed the Veteran's burial (the last expenses for which VA compensated the Veteran's mother) but the immediate family had refused to provide a death certificate for the "estranged lady in Spain" to receive benefits. Subsequently, a certified copy of the corrected death certificate was received which listed the Veteran's age as 53 at his death and also indicated that at his death he was married to the appellant. III. Claim for Death Pension Death pension is available to the "surviving spouse" of a Veteran because of his death due to nonservice-connected disability(ies), as long as the Veteran served for the required period of time during wartime subject to certain income limitations. See 38 U.S.C.A. §§ 101, 1541 (West 2002); 38 C.F.R. §§ 3.23, 3.3 (2012). Here, the Veteran served during a recognized period of war, i.e., the Vietnam Conflict which is recognized as having been from August 1964 through May 1975. See 38 U.S.C.A. § 101(29)(B) (West 2002); 38 C.F.R. § 3.2(f) (2012). III. A. Spousal Recognition Under 38 C.F.R. § 3.50(a), a spouse is a person of the opposite sex whose marriage to the Veteran meets the requirements of 38 C.F.R. § 3.1(j). VA defines a "marriage" as a marriage valid under the law of the place where the parties resided at the time of marriage, or the laws of the place where the parties resided when the right to benefits accrued. 38 U.S.C.A. § 103(c); 38 C.F.R. § 3.1(j). 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. See 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. 38 C.F.R. § 3.53(a). In this regard, 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). 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. 38 C.F.R. § 3.53(b). The statement of the surviving spouse as to the reason for the separation will be accepted in the absence of contradictory information. Id. 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. Id. In Gregory v. Brown, 5 Vet. App. 108 (1993), the Court 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. First, the spouse must be free of fault in the initial separation. Id. at 112. Second, the separation must have been procured by the Veteran or due to his misconduct, with the fault determination based on an analysis of the conduct at the time of separation. Id. The Court emphasized that the "without fault" requirement of the law was not a continuing one. Rather, fault, or the absence of fault, is to be determined based on an analysis of conduct at the time of separation. Id. In Alpough v. Nicholson, 490 F.3d 1352, 1357 (Fed. Cir. 2007), the United States Court of Appeals for Federal Circuit (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. § 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 38 C.F.R. § 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Although the RO has now conceded that the appellant was the recognized spouse of the Veteran at his death, because this was a matter at issue during the pendency of the appeal, the Board will address whether the appellant is the recognized spouse of the Veteran. It is undisputed that the Veteran and the appellant had married and separated. There is no evidence of record suggesting that the appellant has remarried or, since the death of the Veteran, lived with another person of the opposite sex and held herself out openly to the public to be the spouse of such other person. Thus, the only questions are whether they had actually been divorced and, if not, whether the appellant was at fault in the separation. The evidence of record does not dispute the appellant's account of her separation from the Veteran as being by mutual consent. The Federal Circuit has held that separation by mutual consent generally does not constitute desertion and does not break the continuity of cohabitation under § 3.53(b). Alpough, 490 F.3d at 1358. A separation by mutual consent is equivalent to a separation "procured" by the Veteran without the fault of the surviving spouse under § 3.53(b). Id. at 1357. Moreover, there is insufficient evidence upon which it may be concluded that the appellant was at fault for the separation. However, 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, which would break the continuity of cohabitation and preclude surviving spouse recognition in such instance. Alpough, 490 F.3d at 1357. But in the present case, the evidence in its entirety does not show an intent by the appellant to desert the Veteran nor is there any evidence that the separation was induced by misconduct or communication by the appellant. In this case, despite the Veteran's written comments that he was divorced from the appellant, the preponderance of the evidence shows that, in fact, he was only separated from the appellant. As to this, during his lifetime the Veteran never provided any information as to the precise date and place of any divorce proceeding. In fact, he provided contradictory dates as to when he was reportedly divorced, i.e., in 1992 and 1998. Further, he never submitted to VA a copy of any divorce decree. Posited against this are his earlier statement that he and the appellant were only separated and the unrebutted statements of the appellant that, although legally separated, they had never formally divorced. Accordingly, together with a search of public records where the Veteran apparently resided which found no divorce degree and with the favorable resolution of doubt, the Board finds that the appellant is the surviving spouse of the Veteran. The Board reiterates that a failure to live with the Veteran after the separation does not necessarily mean the appellant intended to desert the Veteran. Thus, since the evidence demonstrates the appellant did not intend to permanently desert the Veteran, the parties are deemed to be exempt from the continuous cohabitation requirement under § 3.53, regardless of how long the parties remained separated. III. B. Entitlement to death pension based on countable income The surviving spouse of a veteran who met the wartime service requirements will be paid the maximum rate of pension, reduced by the amount of her countable income. 38 U.S.C.A. § 1541 (West 2002); 38 C.F.R. §§ 3.23, 3.273 (2012). Payments from any kind from any source shall be counted as income during the 12-month annualization period in which received, unless specifically excluded. 38 C.F.R. § 3.271 (2012). For the purpose of determining initial entitlement, the monthly rate of pension shall be computed by reducing the applicable maximum pension rate by the countable income on the effective date of entitlement and dividing the remainder by 12. 38 C.F.R. § 3.273(a). Nonrecurring income (income received on a one-time basis) will be counted, for pension purposes, for a full 12-month annualization period following receipt of the income. 38 C.F.R. § 3.271(c). Unreimbursed medical expenses will be excluded when the following requirements are met: (i) They were or will be paid by a surviving spouse for medical expenses of the spouse, veteran's children, parents and other relatives for whom there is a moral or legal obligation of support; (ii) They were or will be incurred on behalf of a person who is a member or constructive member of the spouse's household; and (iii) They were or will be in excess of 5 percent of the applicable maximum annual pension rate (MAPR) or rates for the spouse (including increased pension for family members but excluding increased pension because of need for aid and attendance or being housebound) as in effect during the 12- month annualization period in which the medical expenses were paid. 38 C.F.R. § 3.271(g). Basic entitlement to such pension exists if, among other things, the claimant's income is not in excess of the maximum annual pension rate specified in 38 C.F.R. § 3.23. See 38 U.S.C.A. § 1521(a), (b); 38 C.F.R. § 3.3(a)(3). The MAPR is published in Appendix B of VA Manual M21-1 (M21-1) and is to be given the same force and effect as if published in VA regulations. See 38 C.F.R. § 3.21. The maximum annual pension rate is adjusted from year to year. If the appellant's income is less that the MAPR, VA will pay benefits to bring her income up to that level. For 2006, the MAPR for a surviving spouse without a dependent child was $7,329.00. See M21-1, Part I, Appendix B. In 2006 the MAPR for a surviving spouse with one dependent child was $9,594.00. For each additional child add $1,866.00. Thus, even assuming that all three children were dependent, the total MAPR in this case for the year 2006 would be $13,326.00. For 2007, the MAPR for a surviving spouse without a dependent child was $7,498.00. See M21-1, Part I, Appendix B. In 2007 the MAPR for a surviving spouse with one dependent child was $9,815.00. For each additional child add $1,909.00. Thus, even assuming that all three children were dependent, the total MAPR in this case for the year 2007 would be $13,633.00. For 2008, the MAPR for a surviving spouse without a dependent child was $7,933.00. See M21-1, Part I, Appendix B. In 2008 the MAPR for a surviving spouse with one dependent child was $10,385.00. For each additional child add $2,020.00. Thus, even assuming that all three children were dependent, the total MAPR in this case for the year 2008 would be $14,425.00. For 2009, the MAPR for a surviving spouse without a dependent child remained $7,933.00. See M21-1, Part I, Appendix B. In 2009 the MAPR for a surviving spouse with one dependent child remained $10,385.00. For each additional child add $2,020.00. Thus, even assuming that all three children were dependent, the total MAPR in this case for the year 2009 would be $14,425.00. For 2010, the MAPR for a surviving spouse without a dependent child remained $7,933.00. See M21-1, Part I, Appendix B. In 2010 the MAPR for a surviving spouse with one dependent child remained $10,385.00. For each additional child add $2,020.00. Thus, even assuming that all three children were dependent, the total MAPR in this case for the year 2010 would be $14,425.00. For 2011, the MAPR for a surviving spouse without a dependent child was $8,219.00. See M21-1, Part I, Appendix B. In 2011 the MAPR for a surviving spouse with one dependent child was $10,759.00. For each additional child add $2,093.00. Thus, even assuming that all three children were dependent, the total MAPR in this case for the year 2011 would be $14,425.00. Here, the appellant has reported income of 1,100.00 Euros monthly, which equals 13,200.00 Euros annually. As noted by the RO in the Statement of the Case, the Euro to dollars conversion means that her income, in dollars, is $18,358.00 annually. It is not shown or contended that the appellant paid the costs and expenses of the Veteran's last illness, any debts existing at his death, and the evidence shows that the Veteran's burial expenses were also not paid by the appellant. See 38 C.F.R. § 3.272(h) Thus, because she has not reported having any deductible expenses the appellant's income exceeds the MAPR and, so, she is not eligible for death pension benefits because of excessive income. Based on the foregoing, the Board concludes that the appellant is not legally entitled to VA death pension benefits because her income exceeds the statutory limits for entitlement to death pension benefits. Where the law and not the evidence is dispositive, the claim must be denied due to lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Because the appellant's income exceeds the statutory limits, she is not legally entitled to death pension benefits. Therefore, her claim of entitlement to death pension benefits must be denied. ORDER Entitlement to death pension benefits is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs