Citation Nr: 1753550 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 12-21 140A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to recognition of the appellant as the surviving spouse of the Veteran for purposes of Department of Veterans Affairs (VA) Dependency Indemnity Compensation (DIC) benefits. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD S. Finn, Counsel INTRODUCTION The Veteran served on active duty from October 1957 to October 1963. The Veteran died in March 1989. The appellant seeks to be recognized as his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2010 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In September 2016, the appellant indicated that she wished to cancel her request for a Board hearing. Her hearing request is deemed withdrawn. See 38 C.F.R. § 20.704 (e) (2017). FINDINGS OF FACT 1. By a January 2009 decision, the Board denied the appellant's claim seeking recognition as the Veteran's surviving spouse for purposes of DIC benefits. 2. Evidence received since the January 2009 Board decision does not relate to a previously unestablished element of the claim or raise a reasonable possibility of substantiating the appellant's claim seeking recognition as the Veteran's surviving spouse for purposes of DIC benefits. CONCLUSIONS OF LAW 1. The January 2009 Board decision that denied the appellant's claim seeking recognition as the Veteran's surviving spouse is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.1100, 20.1104 (2017). 2. Evidence received since the January 2009 Board decision is new, but not material, and therefore, the appellant's claim seeking recognition as the surviving spouse of the Veteran for purposes of DIC benefits is not reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Irrespective of any decision of the AOJ to reopen the appellant's appeal, the Board must first make the threshold preliminary determination of whether there is new and material evidence to reopen the claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Board denied the appellant's claim seeking recognition as the Veteran's surviving spouse in a January 2009 decision. Although she appealed the denial of the claim to the CAVC, a December 2009 Order from the CAVC dismissed the case because she failed to prosecute the appeal or comply with court rules. No new and material evidence relevant to the claim was associated with the claims file within one year of the Board decision. Cf. 38 C.F.R. § 3.156 (b). The January 2009 decision is final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. A previously denied claim may be reopened by submission of new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. New and material evidence cannot be cumulative or 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. When determining whether submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim in light of VA's duty to assist. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). In the instant appeal, the Board denied the appellant's claim seeking recognition as the Veteran's surviving spouse because the appellant's marriage to the Veteran was deemed to have been terminated by a judgment of divorce rendered in March 1986. The Veteran married T.F.J. in March 1988. The Veteran's March 1989 death certificate lists T.F.J. as the surviving spouse. In August 1989, T.F.J. applied for DIC benefits, which was denied because his death was not service-related. The address on the claim was the same as the Veteran's address. Her application also stated that she "knew of no impediment that would have prevented [her] marriage to [the Veteran]." The record clearly notes that the appellant's marriage ended to the Veteran in March 1986 and marriage certificate and the death certificate clearly lists another person as his surviving spouse, the appellant may not be recognized as the Veteran's surviving spouse for the purpose of establishing entitlement to VA death benefits. See 38 U.S.C.A. § 101 (3); 38 C.F.R. §§ 3.1 (j), 3.50. The law in this matter is clear and unequivocal. The appellant does not meet the definition of a surviving spouse of the Veteran. The pertinent evidence of record at the time of the January 2009 decision denying the appellant's claim clearly showed that a final judgment of divorce had been entered by the county supreme court judge in March 1986, thereby dissolving the appellant's marriage to the Veteran on that date, and did not include evidence that was requested of the appellant to support her contention that her marriage to the Veteran remained in effect. Evidence received since the January 2009 decision does not document any pertinent fact, but is a mere contention that the Veteran and T.F.J. were not legally married because a copy of T.F.J.'s divorce from her previous husband did not populate in a records search. She then asserts that she had a common law marriage with the Veteran when she moved in with him in 1987. The lack of finding a divorce decree is not evidence that the Veteran was not married to T.F.J. Therefore, this evidence is not material. Further, her assertion that she had a common law marriage with the Veteran also fails. He was married and not free to establish one. Further, she stated that she did not live with the Veteran continuously from the date of marriage to the date of his death in her May 2007 application for DIC benefits. (But see October 2007 Statement of Marital Relationship that they have lived together continuously from that time until death). She stated that the reason for the separation was that he did not want her to see him sick. In a May 2007 written statement, she stated "At the time of my marriage I did not know of any burials." Yet, T.F.J.'s application noted Johnson Funeral Home as place of burial and that she was responsible for his burial. The Board acknowledges the various lay statements that the appellant and Veteran lived together from 1987 until his death. However, a common law marriage simply did not exist,even construing the evidence the appellant submitted in the most favorable light. With regard to her assertion that Social Security Administration (SSA) recognized her as his widow, SSA findings not binding on VA. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). The new evidence submitted by the appellant does not abrogate the Board's prior determination that the appellant was not married to the Veteran at the time of his death, and therefore, not entitled to recognition as his surviving spouse. See 38 C.F.R. § 3.50 (2017). While the appellant has presented new evidence in her appeal, this new evidence, as explained above, does not relate to unestablished facts necessary to substantiate her claim. Rather, the new evidence is not material, merely establishing that a divorce decree could not found in a limited records search, and fails to raise a reasonable possibility of substantiating the appellant's claim for recognition as the Veteran's surviving spouse. See Shade, supra. The Board finds, therefore, that there is no new evidence showing that the appellant was the legal spouse of the Veteran at the time of his death as required by VA regulations. See 38 C.F.R. §3.50. Accordingly, the Board finds that new evidence submitted since the January 2009 decision is not material, and therefore, the petition to reopen her claim of entitlement to recognition as the surviving spouse of the Veteran for purposes of DIC benefits must be denied. ORDER As new and material evidence has not been received, the petition to reopen the claim of entitlement to recognition of the appellant as the surviving spouse of the Veteran for DIC benefits is denied. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs