Citation Nr: 1751919 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 13-22 777 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of recognition as the deceased Veteran's surviving spouse for the purpose of establishing eligibility for VA death benefits. 2. Entitlement to recognition of the appellant as the deceased Veteran's surviving spouse for the purpose of establishing eligibility for VA death benefits. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Elwood, Counsel INTRODUCTION The Veteran served on active duty from April 1974 to September 1986. He died in September 2004. This matter comes before the Board of Veterans' Appeals (Board) from a May 2012 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In that decision, the RO found that the appellant was not eligible for VA death benefits because she had not been established as the surviving spouse of the Veteran. As a final preliminary matter, the Board notes that the agency of original jurisdiction (AOJ) characterized the issue on appeal as whether the appellant is the surviving spouse of the Veteran and adjudicated this issue on a de novo basis in the May 2012 decision and a June 2013 statement of the case (SOC). Regardless, as explained below, a claim of recognition as the deceased Veteran's surviving spouse was initially denied in a May 2008 decision and this decision is final. Where the claim in question has been finally adjudicated, the statutes make clear that the Board must initially determine whether new and material evidence has been submitted with regard to the claim. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Only where the Board concludes that new and material evidence has been received does it have jurisdiction to consider the merits of the claim. Hickson v. West, 11 Vet. App. 374, 377 (1998). Thus, the Board has expanded the appeal to include the issue of whether new and material evidence has been received to reopen the claim of recognition as the deceased Veteran's surviving spouse for the purpose of establishing eligibility for VA death benefits, as set forth above on the title page. FINDINGS OF FACT 1. The appellant's claim of recognition as the deceased Veteran's surviving spouse was originally denied in a May 2008 decision on the basis that the appellant and the Veteran were divorced at the time of the Veteran's death; the appellant did not appeal this decision within one year of its issuance and new and material evidence was not received within that year. 2. The appellant's claim of recognition as the deceased Veteran's surviving spouse was again denied in a February 2010 decision; the appellant did not appeal this decision within one year of its issuance and new and material evidence was not received within that year. 3. Evidence received since the February 2010 RO decision includes information that was not previously considered and which relates to an unestablished fact necessary to substantiate the claim of recognition as the deceased Veteran's surviving spouse for the purpose of establishing eligibility for VA death benefits, the absence of which was the basis of the previous denials. 4. The Veteran and the appellant were legally married in June 1969. 5. The Veteran and the appellant were legally divorced in October 1986 and the appellant did not live continuously with the Veteran until his death. CONCLUSIONS OF LAW 1. The RO's May 2008 and February 2010 decisions that denied the appellant's claim of recognition as the deceased Veteran's surviving spouse are final. 38 U.S.C. § 7105 (d)(3) (West 2012); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103 (2017). 2. The evidence received since the February 2010 RO decision is new and material and sufficient to reopen the appellant's claim of recognition as the deceased Veteran's surviving spouse. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (a) (2017). 3. The criteria for recognition of the appellant as the deceased Veteran's surviving spouse for the purpose of establishing eligibility for VA death benefits have not been met. 38 U.S.C. §§ 101(3) (West 2012); 38 C.F.R. §§ 3.1 (j), 3.50, 3.53 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (West 2012); 38 C.F.R §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2017). In light of the Board's favorable decision in reopening the claim of recognition as the deceased Veteran's surviving spouse, the claim is substantiated and there are no further VCAA duties as to this issue. Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C. § 5103A (a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). As for the underlying claim of recognition as the deceased Veteran's surviving spouse, the appellant was notified of the basis for the denial of her claim, was notified of the applicable laws and regulations pertaining to surviving spouse status in the June 2013 SOC, and has been afforded the opportunity to present evidence and argument with respect to the claim on appeal. The Board finds that these actions are sufficient to satisfy any fundamental due process owed the appellant. Neither the appellant nor her representative has raised any issues with regard to the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Moreover, as the RO has already addressed the merits of the underlying claim, there is no prejudice to the appellant in the Board doing so as well. Bernard v. Brown, 4 Vet. App. 4 Vet. App. 384, 390 (1993). II. Analysis A. Petition to Reopen Generally, an RO decision denying a claim which has become final may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (d)(3). The exception to this rule is 38 U.S.C. § 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. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as existing 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 of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The newly presented evidence is presumed to be credible for purposes of determining whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). For the purpose of determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). In this case, the RO initially denied the appellant's claim of recognition as the deceased Veteran's surviving spouse by way of a May 2008 decision on the basis that the appellant and the Veteran were divorced at the time of the Veteran's death. The appellant was notified of the RO's May 2008 decision, she did not appeal the decision within one year of its issuance, and new and material evidence was not received within that year. Therefore, the May 2008 decision became final. See 38 U.S.C. § 7105 (d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. The appellant's claim of recognition as the deceased Veteran's surviving spouse was again denied in a February 2010 decision on the basis that the appellant and the Veteran were divorced at the time of the Veteran's death. The appellant was notified of the RO's February 2010 decision, she did not appeal the decision within one year of its issuance, and new and material evidence was not received within that year. Therefore, the February 2010 decision also became final. See Id. Pertinent new evidence received since the February 2010 denial includes letters from the appellant's sister (V.L.) and daughter (H.J.) dated in July 2013 and a copy of a 2011 Tax Notice from Jefferson County, Alabama. This additional evidence reflects that the appellant and the Veteran reportedly lived together until the Veteran's death and that they jointly owned real estate. Hence, the additional evidence pertains to an element of the claim that was previously found to be lacking and raises a reasonable possibility of substantiating the claim by indicating that the appellant may have continuously lived with the Veteran until the time of his death. The evidence is, therefore, new and material, and the claim of recognition as the deceased Veteran's surviving spouse is reopened. B. Underlying Surviving Spouse Claim In order to be recognized as a veteran's surviving spouse for the purpose of establishing eligibility to VA death benefits, the appellant must be a person whose marriage to the veteran meets the requirements of 38 C.F.R. § 3.1 (j) and 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 the fault of the spouse; and (2) 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 and held himself or 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. "Marriage" means a marriage valid under the law of the place where the parties resided at the time of the marriage, or the law of the place where the parties resided when the right to benefits accrued. 38 C.F.R. § 3.1 (j). If the couple did not continuously cohabitate or was estranged or separated at death, VA must determine whether the separation was due to the misconduct of, or procured by the veteran without the fault of the spouse. See 38 U.S.C.A. § 101 (3); Alpough v. Nicholson, 490 F.3d 1352, 1358 (Fed. Cir. 2007); Gregory v. Brown, 5 Vet. App. 108, 112 (1993); 38 C.F.R. §§ 3.53. 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). In determining whether there was continuous cohabitation, the statements of the surviving spouse as to the reason for the separation will be accepted in the absence of contradictory information. Id. In this case, the appellant contends that she is the surviving spouse of the Veteran. In particular, she claimed in a July 2016 statement that although they were legally divorced, they never physically separated, continuously lived together and owned property together in various states until the Veteran's death, and held themselves out to the community as being married. In support of her claim, the appellant submitted a 2011 Tax Notice from Jefferson County, Alabama which reveals that she and the Veteran jointly owned real estate. Also, she submitted July 2013 statements from her sister (V.L) and daughter (H.J.) in which they reported that the appellant and the Veteran lived together until the Veteran's death. The appellant is competent to report her relationship status with the Veteran prior to his death and V.L. and H.J. are competent to report their observations as to the relationship between the appellant and the Veteran. Nevertheless, this lay evidence must be weighed against the other evidence and its credibility must be assessed. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (lay witnesses are competent to testify as to their observations, but this testimony must be weighed against the other evidence of record). In this regard, the Board finds that probative value of the other evidence of record is of greater weight than the reports of the appellant, V.L., and H.J, for the following reasons. A Statistical Record of Marriage from the State of Mississippi reflects that the appellant and the Veteran were legally married in June 1969. A signed Final Divorce Decree from the Chancery Court for the Chickasawra District of Mississippi County, Arkansas dated in October 1986, however, indicates that they separated in July 1985 and that the appellant was granted an absolute divorce from the Veteran. The Veteran subsequently indicated that he was divorced/unmarried on "Veteran's Application for Compensation or Pension" forms (VA Form 21-526) dated in May 1987, September 1999, and May 2002 and on a July 2002 "Financial Status Report" form (VA Form 20-5655). In an undated letter signed by H.N. and A.N., the Veteran's sister reported that the Veteran and M.S. started living together in 1993, at which time "they assumed the role of man and wife." Also, in an October 2004 letter, J.H. reported that the Veteran and M.S. lived together from August 1993 until the Veteran's death in September 2004. M.S. was introduced as the Veteran's wife and she took care of the Veteran when he became ill. These statements from the Veteran's sister and J.H. are consistent with information contained in the Veteran's VA treatment records (e.g., an April 2002 VA medicine inpatient note, a May 2002 VA inpatient psychiatry consultation note, and a May 2002 VA social work note), on his September 2004 death certificate, and in a September 2004 letter from USAA Federal Savings Bank. This evidence reflects that the Veteran lived at the home of his friend (M.S.) in the years prior to his death, that he and M.S. had a joint credit card account, and that the Veteran was listed as being married to M.S. on his death certificate. C.P. reported on a November 2004 "Supporting Statement Regarding Marriage" form (VA Form 21-4171) that he had known the Veteran for 15 years and M.S. for 20 years, that he met the Veteran and M.S. every day or two, that the Veteran and M.S. were generally known as husband and wife and claimed to be husband and wife, that neither of them ever denied the marriage, that they referred to each other as husband and wife, and that they lived together in the same home from August 1993 until the Veteran's death in September 2004. Overall, C.P. reported that he had known the Veteran and M.S. for many years, that they lived next door to him and "presented themselves as husband and wife," and that they "got along well and did things as married." An undated "Social Security Administration Application for Survivors Benefits" form (SSA-24) completed by M.S. indicates that she claimed to be the surviving spouse of the Veteran. She also reported on a November 2004 "Statement of Marital Relationship" form (VA Form 21-4170) that she and the Veteran began living as husband and wife in August 1993, that she sometimes used the Veteran's last name, and that they lived together continuously from that time until the Veteran's death. Moreover, she submitted a claim for VA death benefits as the Veteran's surviving spouse in November 2004 (via a VA Form 21-534), contended in an April 2006 statement (VA Form 21-4138) that they had been in a common law marriage, acknowledged on an April 2006 "Declaration of Status of Dependents" form (VA Form 21-686c) that the Veteran had divorced the appellant, and reported in August 2006 statements (VA Form 21-4138) that the Veteran was divorced in October 1986, that she started living with the Veteran as his common law wife in 1995, that she knew of no reasons why she and the Veteran were not free to marry, that at the time of her marriage to the Veteran she was unaware of any legal reason why she could not marry the Veteran, and that she and the Veteran lived continuously from the date of their marriage until the Veteran's death. The appellant submitted claims for VA death benefits (VA Form 21-534) in October 2006, December 2008, and May 2011. She contended that she was the Veteran's surviving spouse, that they were married in June 1969, and that the marriage ended due to the Veteran's death in September 2004. Also, she reported in a June 2009 statement (VA Form 21-4138) and during an August 2009 communication with the AOJ (see an August 2009 "Report of General Information" form (VA Form 119)) that she was "always married to [the Veteran] until his death" and that they were never divorced. In light of the fact that the appellant and the Veteran were legally divorced in October 1986, the fact that the Veteran reported being divorced/unmarried on numerous instances between May 1987 and July 2002, the evidence in the Veteran's VA treatment records that he lived with M.S. in the years prior to his death, the notation on his death certificate that he was married to M.S. at the time of his death, the various lay statements submitted by M.S., H.N., A.N., J.H., and C.P. which reflect that the Veteran lived with M.S. and held himself out as being married to M.S. for many years prior to his death, and the inconsistent information provided by the appellant as to nature of her relationship with the Veteran (e.g., she reported that she was never divorced from the Veteran during her August 2009 communication with the AOJ (VA Form 119), but later acknowledged that they were legally divorced in her July 2016 statement), the Board finds that the reports of the appellant, V.L., and H.J. that the appellant and the Veteran remained married and lived together until the time of the Veteran's death are not credible. In sum, the above evidence reflects that the Veteran and the appellant were divorced at the time of the Veteran's death, that they did not live continuously together after the divorce, and that they did not otherwise re-establish a marriage. The mere fact that real estate continued to be shown as jointly owned by the Veteran and the appellant in 2011 (7 years after the Veteran's death) is of little probative value and does not provide sufficient evidence that the appellant was the Veteran's surviving spouse at the time of his death. The legal criteria in this case are clear and the evidence establishes that the appellant and the Veteran were legally divorced at the time of the Veteran's death. Thus, the law does not recognize the appellant as the surviving spouse of the Veteran for the purpose of VA death benefits. While the Board is cognizant of the appellant's contentions, it is bound by applicable laws and regulations. 38 U.S.C. § 7104 (c) (West 2012); 38 C.F.R. §§ 19.5, 20.101(a) (2017). The law is clear that in order to establish entitlement to VA death benefits, the appellant must be recognized as the Veteran's legal spouse at the time of his death. 38 C.F.R. §§ 3.1 (j), 3.50. The fact that the appellant was not legally married to the Veteran at the time of his death forecloses eligibility for VA death benefits. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. Accordingly, the appeal is denied. ORDER The application to reopen the claim of recognition as the deceased Veteran's surviving spouse for the purpose of establishing eligibility for VA death benefits is granted. Entitlement to recognition of the appellant as the deceased Veteran's surviving spouse for the purpose of establishing eligibility for VA death benefits is denied. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs