Citation Nr: 1429158 Decision Date: 06/27/14 Archive Date: 07/03/14 DOCKET NO. 10-34 466 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to recognition as the Veteran's surviving spouse for purposes of establishing eligibility for VA death benefits. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. McCurdy, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 to January 1968. He died in August 2008. The appellant seeks entitlement to VA benefits as his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2009 determination of the RO that denied entitlement to certain VA death benefits because the appellant was not recognized as the deceased Veteran's surviving spouse. In February 2014, the appellant testified at a Board hearing by videoconference technology before the undersigned Acting Veterans Law Judge. A transcript of this hearing is of record. In February 2014, after certification of the appeal to the Board, the Veteran submitted a letter along with a waiver of local jurisdiction. Accordingly, the letter has been reviewed in connection with the appellant's claim. FINDINGS OF FACT 1. The appellant and the Veteran entered into a common law marriage in April 1985. 2. The most probative evidence indicates that the Veteran and the appellant did not live together continuously prior to his death, the separation was not by mutual consent, and the separation was not due to the misconduct of, or procured by, the Veteran without fault of the spouse. CONCLUSION OF LAW The criteria for entitlement to recognition as the surviving spouse of the Veteran for the purpose of VA death benefits have not been met. 38 U.S.C.A. §§ 101(3), 103, 5107 (West 2002); 38 C.F.R. §§ 3.1(j), 3.50, 3.53, 3.206 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2). In the event that a VA notice error occurs regarding the information or evidence necessary to substantiate a claim, VA bears the burden to show that the error was harmless. However, the appellant bears the burden of showing harm when not notified whether the necessary information or evidence is expected to be obtained by VA or provided by the appellant. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In the context of a claim for death benefits, § 5103(a) notice must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). Here, VCAA notice letters were sent to the appellant in October 2008, February 2009, and April 2009. These letters advised the appellant of what is needed to substantiate a death benefits claim. It did not provide a statement of the conditions for which the Veteran was service-connected at the time of his death. Regardless, as the appellant was advised of the criteria for establishing the threshold matter addressed herein, and as her claim is denied based on this threshold matter, she is not prejudiced by any technical deficiency in notice regarding the underlying claim. As this decision renders Hupp-compliant notice moot, any Hupp notice omission is harmless error. Therefore, the Board finds that adequate notice was provided to the appellant in compliance with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The RO has associated the Veteran's service and post-service treatment records, statements made by the appellant and individuals on her behalf, and statements made by the Veteran's sister with the claims file. The appellant has not identified any additional evidence pertinent to the matter of whether she is the surviving spouse of the Veteran. The claimant was afforded the opportunity to testify before a Decision Review Officer (DRO) in April 2010 and before the undersigned Acting Veterans Law Judge (AVLJ) in February 2014. In Bryant v. Shinseki, the U.S. Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) requires that the DRO or VLJ who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the April 2010 and February 2014 hearings, the issue on appeal was identified. Information was solicited regarding the appellant's relationship with the Veteran and the circumstances of their separation, including explanations of evidence of record. The appellant demonstrated actual knowledge of the information necessary to prove her claim. The appellant specifically addressed evidence in support of her claim, indicating an understanding of the threshold issue currently before the Board and of the requirements to establish her status as a surviving spouse. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (explaining that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim.). Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the Veteran's claim for service connection. As such, the Board finds that, consistent with Bryant, the DRO and undersigned VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Factual Background, Legal Criteria, and Analysis The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each item of evidence. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence as appropriate. A recognized marriage for VA purposes is defined as one which is valid under the law of the place where the parties resided at the time of marriage, or the law of the place where the parties resided when the right to benefits accrued. 38 U.S.C.A. § 103(c) (West 2002); 38 C.F.R. § 3.1(j) (2013). VA death benefits may be paid to a "surviving spouse" who was the spouse of the veteran at the time of the veteran's death; and (1) who lived with the veteran continuously from the date of marriage to the date of the veteran's death except where there was a separation which was due to the misconduct of, or procured by, the veteran without fault of the spouse; and (2) has not remarried or has not since the death of the veteran lived with another person of the opposite sex and held himself/herself out openly to the public to be the spouse of such other person. 38 C.F.R. §§ 3.50(b), 3.53 (2013). The requirement that there must be continuous cohabitation from the date of marriage to the date of death of the veteran will be considered as having been met when the evidence shows that any separation was due to the misconduct of, or procured by, the veteran without the fault of the surviving spouse. Temporary separations which ordinarily occur, including those caused for the time being through fault of either party, will not break the continuity of the cohabitation. 38 C.F.R. § 3.53(a) (2013). The statement of the surviving spouse as to the reason for the separation will be accepted in the absence of contradictory information. If the evidence establishes that the separation was by mutual consent and that the parties lived apart for purposes of convenience, health, business, or any other reason which did not show an intent on the part of the surviving spouse to desert the veteran, the continuity of the cohabitation will not be considered as having been broken. State laws will not control in determining questions of desertion; however, due weight will be given to findings of fact in court decisions made during the life of the veteran on issues subsequently involved in the application of this section. 38 C.F.R. § 3.53(b). The Court has held that one claiming to be the spouse of a veteran has the burden to come forward with preponderating evidence of a valid marriage under the laws of the appropriate jurisdiction. Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). The Federal Circuit has stated that "a separation by mutual consent does not constitute desertion unless the separation resulted from misconduct or communication of a definite intent to end the marriage by the surviving spouse." See Alpough v. Nicholson, 490 F.3d 1352 (Fed. Cir. 2007). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2013). An administrative decision of the VA dated in September 1989 indicates that the Veteran and the appellant entered into a common law marriage in accordance with the laws of the state of Ohio in April 1985. At a podiatry appointment in February 2001, the Veteran reported that he has "no help at home." His toenails were found elongated and painful so as to "inhibit ambulation." During a July 2001 dentistry appointment, the Veteran's sister was identified as his caretaker. At that time, the Veteran was informed of the need for a tooth extraction as it was identified as "nonrestorable." He indicated that he was "unable to brush teeth." During a social work evaluation in March 2002, the Veteran indicated that he was "separated from his wife" and that he "needs to get a lawyer and get divorced." On a Declaration of Status of Dependents submitted in May 2003, the Veteran indicated that his "wife abandoned [him]." His sister submitted a statement in May 2003 stating that the Veteran's wife "walked out and never came back" in May 2001. At that time, the Veteran's sister went to visit her brother and found that he had no food except "snack food and pepsi" and that "he had lost 50 lbs, his teeth were black, and he could hardly stand up." She stated that the Veteran did not know where his wife was or if she was coming back. At that time, she packed up his stuff and took him to California with her. The Veteran's sister also stated that his wife had "never contacted him." The appellant submitted tax forms from 2006 and 2007 indicating that she filed her taxes as "married filing separately." In September 2008, the appellant submitted a claim for death benefits as the surviving spouse of the Veteran. In a statement dated in February 2009, the appellant indicated that she and the Veteran entered a common law marriage in Akron, Ohio. She stated that they had been "living together as husband and wife since May 1979 but in 1985 [she] started using" his last name. She further stated that there "has never been a divorce between [them]." In a statement dated in November 2008, the appellant stated that as of May 1979, she and the Veteran "made long range plans to secure our future and retirement." She went on to note that the Veteran had a stroke in 1997 and so decided to get assisted living in 2001 which was "beyond [her] control." The appellant submitted the Veteran's death certificate, which reflects that he died in August 2008. It noted that he was divorced and that informant was the Veteran's sister. The appellant stated that the information on the death certificate was incorrect in that the Veteran was not divorced. A statement made by the appellant in April 2009 reflects that the Veteran and the appellant lived together from May 1979 to May 2001 when "he felt that [she] needed help to take care of him." A letter from June 2009 from the Veteran's sister states that the appellant abandoned her brother and "was living with another man." She also noted that when she visited him in 2001, the Veteran had lost weight, did not have food in the house, and that none of his medicines were filled for months. When she asked the appellant what was going on and that she wanted to take him to California with her, the appellant indicated that she "didn't care and she wasn't coming back." The Veteran's sister stated that the appellant never "called [her] home, or wrote to him or e-mailed him." The appellant submitted letters from G.R., C.J., J.H., A.K., and R.S. The letter from G.R. indicated that the Veteran "could be very abusive towards wife and children" but did not elaborate and such is not argued by the appellant. He also noted that the appellant was taking care of the Veteran before he left for California. A letter from C.J. states that the Veteran was living in California for the extent of his interactions with the appellant, from May 2001 to May 2002. J.H. stated that he previously resided with the appellant and the Veteran and during that time, the appellant would care for the Veteran before heading to work. He went on to note that if the appellant was unable to care for the Veteran, he would help. A.K.'s letter indicated that the Veteran and appellant were longtime friends of his and that he had witnessed the appellant taking care of the Veteran. He even stated that the Veteran would call his home for the appellant after he left for California. The letter from R.S. stated that even after the Veteran's stroke, the appellant was taking good care of the Veteran and that he would come over and do housework for the Veteran. Letters from Maricopa County, Summit County, and the County of Solano indicate that there is no record of divorce under the appellant's or the Veteran's name since 2000. In April 2010, the appellant met with a Decision Review Officer regarding her claim. She stated that she had a common law marriage with the Veteran beginning in 1979. Additionally, she stated that the Veteran planned to visit his sister in May 2001. At that time, she claims they were living as man and wife, the Veteran was being cared for, and he was getting his medications. She indicated that she stayed in telephone contact with him "at first after he left for California." However, shortly after the Veteran left, the appellant's son was murdered at the Veteran's residence. The appellant relayed that the Veteran was upset by the murder and did not want to return to that home and the telephone calls became less frequent. She stated that she did not visit the Veteran in California because of a disagreement with his sister and that there was no divorce. A letter from D.W. indicates that she lived with the Veteran and the appellant. She stated that after the Veteran's stroke, she, the appellant, and the appellant's son would all take care of the Veteran. She indicated that he was "very well taken care of and very happy." During the February 2014 hearing before the undersigned AVLJ, the appellant indicated that the Veteran went to visit his sister in May of 2001 and that her son was murdered later that month. She said at that time she "couldn't take care of [her]self and [the Veteran] didn't want to come back to that house where [her son] was killed." She stated that they were living together from 1979 to 2001, except for one year where the Veteran was in prison. She indicated that after that, she moved in with her granddaughter's mom and boyfriend. The appellant stated that she talked with the Veteran about him staying in California until the appellant "could get [her] life together and a new place." She also indicated that they would assist the Veteran's sister financially while he was staying there. She further stated that there was always someone home with the Veteran. The appellant stated that the Veteran was an alcoholic and "most of the time he was in a depression." Regarding his teeth, the appellant stated that the Veteran smoked "two and a half packs" of cigarettes a day and "had very poor hygiene." She said he "gave [her] a hard time" every time she tried to get him to shower. The appellant said that she stayed in contact with the Veteran while he was in California and even talked to him on the phone "the night before he passed away". She stated that she did not e-mail him. The appellant testified that she saw him when she went to California to stay with her daughter but she "think[s] it was only one time." She argued that documents signed by the Veteran after he lived with his sister could have been fabricated because the Veteran was blind and would not have known what he was signing. The appellant submitted a copy of a letter to the Veteran from the Veteran's sister dated in April 1997. This letter indicated that the Veteran had an alcohol addiction and that she thought he should try to work out his marital problems with his wife, the appellant. The threshold question that must be addressed in any claim for VA benefits is whether the person seeking the benefit is a proper claimant for the benefit sought. If the appellant is not established as a proper claimant, the claim can proceed no further. The appellant has the burden to establish her status as claimant. See Sandoval v. Brown, 7 Vet. App. 7, 9 (1994); citing Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). To establish that she is the Veteran's surviving spouse, the appellant must also show continuous cohabitation with the Veteran from their marriage until the Veteran's death, or if they did not cohabit, but were separated, that their separation was due to misconduct or by mutual consent (for purposes of convenience, business, or health), and with no intent on the part of the appellant to desert the Veteran. However, the Board finds that the preponderance of the evidence shows that she does not meet these requirements. The record shows that the appellant and the Veteran entered a common law marriage in in April 1985. However, it also shows (and is not in dispute) that they did not cohabit continuously until he died in 2008. In fact, it shows that they did not cohabit for seven years before his death (the appellant acknowledges that they separated in 2001). The Board concedes that there is no evidence of a formal dissolution of the appellant's and the Veteran's marriage by a divorce decree. There is conflicting evidence in the record regarding the reason for the initial separation of the Veteran and the appellant. The appellant argues that the Veteran wanted to visit his sister and stayed for health reasons. The Veteran's sister alleges that she took the Veteran back to California because the appellant "abandoned him." The Veteran's February 2001 comment that he had "no help at home" regarding the poor state of his feet and the July 2001 poor oral hygiene findings contradict the lay statements submitted by the appellant indicating the Veteran was well cared for while living with the appellant. Contemporaneous medical evidence is more reliable, in the Board's view, than the more recent unsupported and self-serving assertions of the appellant and those on her behalf. The Veteran's March 2002 statement to the social worker that he wanted to get a lawyer and divorce his wife indicates there was some intent to end the marriage. This evidence, by virtue of its clinical setting (with no motive for fabrication evident) merits at least some probative value. Additionally, the post-2001 statements provided by the Veteran's sister relating to the status of the relationship and the location of the Veteran are found to be competent, credible, and of significant probative value. The Board has carefully considered the May 1997 letter submitted by the appellant that clearly shows an attempt to encourage her brother to stop drinking alcohol since it was taking a toll on his marriage and his life. However, the Board finds that there is no incentive (monetary or otherwise) for the Veteran's sister to fabricate stories against the appellant's interest in providing a different outlook more than four years later after she found her brother in ill-health and not being properly cared for given his debilitating state. Additionally, even considering the appellant's contentions that she did not visit the Veteran because of contentions with his sister, there is no evidence of any communication for the entire seven year period that he was in California. The appellant's statements were also contradicting, in that she first stated she never visited and then stated that she visited once when she stayed with her daughter. In sum, there is no objective evidence in the record to show that she visited the Veteran, or continued any kind of relationship with him once he was moved to California by his sister. Accordingly, viewing the evidence as a whole, the Board finds that the poor medical state of the Veteran in 2001, the statements of the Veteran to various health professionals in 2001 and 2002, and the post-2001 reports from the Veteran's sister demonstrate that the misconduct of the spouse is at least partially at fault for the initial separation. Moreover, the lack of evidence of contact between the Veteran and appellant for a period of seven years after he went to California demonstrates a significant continued intent to separate. In sum, the most probative evidence indicates that the Veteran and the appellant did not live together continuously prior to his death and that the initial separation was not due to the misconduct of, or procured by, the Veteran without fault of the spouse. As the evidence does not show that the Veteran and the appellant's separation falls into one of the exceptions to continuous cohabitation, the Board finds that the appellant cannot be considered to have met the requirements to establish that she is the Veteran's surviving spouse under the provisions of 38 U.S.C.A. § 101(3); 38 C.F.R. § 3.53(a). Therefore, she is not entitled to recognition as a claimant to establish entitlement to VA death benefits as the Veteran's surviving spouse, and the appeal must be denied. 38 C.F.R. § 3.50. ORDER Recognition as the surviving spouse of the Veteran for the purposes of establishing eligibility for VA death benefits is denied. ____________________________________________ Susan J. Janec Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs