Citation Nr: 1747232 Decision Date: 10/23/17 Archive Date: 10/31/17 DOCKET NO. 14-19 049 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Whether the appellant (K.L.) may be recognized as the surviving spouse of the Veteran for purposes of entitlement to VA death benefits. REPRESENTATION Appellant (K.L.) represented by: The American Legion Interested Party (H.L.) represented by: West Virginia Department of Veterans Assistance WITNESS AT HEARINGS ON APPEAL Appellant (K.L.) ATTORNEY FOR THE BOARD P.S. Rubin, Counsel INTRODUCTION The Veteran had active duty service from February 1972 to April 1978 in the United States Army. The Veteran died in August 2008. The appellant, K.L., is seeking to be recognized as the Veteran's surviving spouse. In addition, an interested party, H.L., also previously sought to be recognized as the Veteran's surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from March 2011 and July 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Offices (ROs) in Huntington, West Virginia, and Philadelphia, Pennsylvania. Jurisdiction of case has since been transferred to the RO in Seattle, Washington. That office forwarded the appellant's appeal to the Board. In November 2013, the appellant (K.L.) presented testimony before a Decision Review Officer (DRO hearing). A transcript of that hearing is associated with the claims file. In August 2017, the appellant (K.L.) presented testimony at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. After the August 2017 hearing, the appellant (K.L.) was given 30 days to submit additional evidence. See 38 C.F.R. § 20.709 (2016). In response, in September 2017, the appellant (K.L.) submitted court records, within the time specified. She also waived her right to have the RO initially consider this additional evidence. See 38 C.F.R. §§ 20.709, 20.800, 20.1304(c) (2016). Thus, the Board accepts this evidence for inclusion in the record and consideration by the Board at this time. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant (K.L.) and the interested party (H.L.) if further action is required. REMAND At the outset, this appeal is a simultaneously contested claim. A review of the claims file shows that the Veteran and the appellant (K.L.) were legally married in December 1982. See December 1982 Marriage Certificate of State of Washington. The Veteran reported divorcing the appellant (K.L.) in June 1995 in Riverside County, California. See June 2008 Formal Claim for Compensation by Veteran (VA Form 21-526). However, a copy of the alleged divorce decree is not of record. Both the appellant and the RO's attempts to secure evidence of a divorce decree were met with negative replies. See e.g., December 2013 response from Superior Court of California County of Riverside, Family Law Division (no records found of divorce between Veteran and appellant K.L. dated in 1995). For her part, the appellant (K.L.) denies ever receiving divorce papers from the Veteran. Thus, there is no official confirmation of record of the termination / dissolution of the marriage between the Veteran and the appellant (K.L.). In this regard, for a prior marriage to be invalidated, it must be terminated by death, divorce, annulment, or determined to be void under State law. See VBA Live Manual M21-1, III.iii.5.B.1.b (change date January 20, 2016). In December 2007, many years later, the Veteran and another woman, the interested party in this case (H.L.), got married. See December 2007 Marriage Certificate from State of West Virginia. The Veteran and the interested party (H.L.) lived together for less than one year from December 2007 until the Veteran's death in August 2008. The Veteran died from head and neck cancer in August 2008 at his residence that he shared with the interested party (H.L.), in West Virginia. See August 2009 Death Certificate of Veteran. H.L. was named as the surviving spouse on the Veteran's death certificate. Notably, the interested party (H.L.), along with the Veteran's sister (P.L.), also paid for the Veteran's funeral and burial costs, and took care of the Veteran during his final illness. See December 2010 RO decision to grant burial benefits; May 2008 and August 2008 funeral receipts / payments by H.L. and P.L.; 2007 and 2008 private and VA medical records during the Veteran's final illness. At the time of the Veteran's death in August 2008, the appellant (K.L.) was incarcerated in California due to a parole violation. She says the last time she saw the Veteran was in April or May of 2008, several months prior to his death. See November 2013 DRO hearing; August 2017 videoconference hearing; August 2011 NOD from appellant (K.L.). With regard to the contested claim for standing as a surviving spouse, H.L. was the first of the two contesting claimants to file for DIC benefits in June 2008. The RO denied H.L.'s status as a surviving spouse in a May 2009 rating decision. This denial of entitlement to DIC and death pension benefits was because H.L. was only married to the Veteran for less than one year prior to his death. See 38 C.F.R. § 3.54 (2016). But in an undated RO note, the RO stated H.L. would still qualify for accrued benefits, as the one-year rule may not apply to this benefit. In any event, H.L. did not file an NOD to the denial of surviving spouse status. Subsequently, the appellant, K.L., filed a separate DIC claim in August 2010. The RO denied K.L.'s status as a surviving spouse in the March 2011 and July 2011 rating decisions on appeal. This particular denial of surviving spouse status for the appellant (K.L.) eventually reached the Board. Thus, in addition to the appellant (K.L.), there is another woman, (H.L.), an interested party, who previously claimed to be the Veteran's lawful surviving spouse. Ultimately, both individuals desired entitlement to VA death benefits, alleging their entitlement to such benefits on the basis of being the Veteran's lawful surviving spouse. See e.g., June 2008 and August 2010 DIC claims of K.L. and H.L. (VA Forms 21-534). That is, both of these individuals, K.L. and H.L., claim they were the Veteran's legal surviving spouse at the time of his death in August 2008. In any event, it is clear that the DIC / death benefits claim is a "contested claim," as the allowance of the appellant (K.L.'s) appeal could result in a denial of benefits to H.L., or vice versa. Additionally, both parties have submitted statements in connection with the claim and have attempted to develop the claim. Therefore, before the merits of the DIC / death benefits claim can be addressed by the RO or Board, it must first be determined whether K.L. or H.L. is the Veteran's lawful surviving spouse for VA purposes. As there are two individuals claiming to be the Veteran's lawful surviving spouse (and thus eligible for VA death benefits), this appeal involves a simultaneously contested claim. See 38 U.S.C.A. § 7105A (West 2014); 38 C.F.R. § 20.3(p) (2016). Moreover, according to the VBA Live Manual, a contested claim "automatically" exists if two people allege to be the legal surviving spouse, and both file a formal claim for the same benefit, such as the case here. See VBA Live Manual M21-1, III.iv.6.A.1.c (change date May 10, 2007). Nonetheless, the RO failed to apply the contested claim procedures to the current case, probably because the appellant (K.L.) and the interested party (H.L.), filed their separate DIC claims at separate RO's. In this regard, as a contested claim, certain procedural safeguards are in place. See 38 U.S.C.A. § 7105A; 38 C.F.R. §§ 19.100, 19.101, 19.102, 20.500 - 20.504, 20.713; see also VBA Live Manual M21-1, Part III, Subpart vi, Chapter 6. Specifically, the AOJ must notify all interested parties of all actions taken by the AOJ and of the right and time limit for initiation of an appeal, and of the right to a hearing and representative. 38 C.F.R. § 19.100. Upon the filing of a Notice of Disagreement (NOD) in a simultaneously contested claim, all interested parties and their representatives will be furnished a copy of the Statement of the Case (SOC). 38 C.F.R. § 19.101. When a Substantive Appeal (VA Form 9) is filed in a simultaneously contested claim, the content of the Substantive Appeal will be furnished to the other contesting parties to the extent that it contains information which could directly affect the payment or potential payment of the benefit which is the subject of the contested claim. 38 C.F.R. § 19.102. Finally, if a hearing is scheduled for any party to a simultaneously contested claim, the other contesting claimants and their representatives, if any, will be notified and afforded an opportunity to present opening testimony and argument. Thereafter, any other contesting party who wishes to do so may present testimony and argument, and the appellant will then be allowed an opportunity to present testimony and argument in rebuttal. 38 C.F.R. § 20.713(a). However, before addressing the merits of whether the appellant (K.L.) may be recognized as the surviving spouse of the Veteran for purposes of entitlement to VA death benefits, the Board finds that additional development of the evidence is required. First, the Board observes that a SOC denying the appellant (K.L.'s) surviving spouse appeal was issued in May 2014. A copy of the May 2014 SOC was only sent to the appellant (K.L.). It was not sent to the other contesting claimant / interested party (H.L.). A short time later, in May 2014, the appellant (K.L.) filed a Substantive Appeal (VA Form 9) to the Board. However, a review of the claims folder reveals that the other interested party (H.L.) was not provided with a copy of K.L.'s May 2014 Substantive Appeal (VA Form 9). Both the May 2014 SOC and May 2014 Substantive Appeal contained discussion and argument relevant to the recognition as a surviving spouse issue on appeal. As noted above, when a SOC is issued or a Substantive Appeal is filed in a simultaneously contested claim, the content of the documents will be furnished to the other contesting parties to the extent that it contains information which could directly affect the payment or potential payment of the benefit which is the subject of the contested claim. 38 C.F.R. §§ 19.101, 19.102. Therefore, the Board finds that the interested party (H.L.) should be provided with copies of the appellant's May 2014 SOC and May 2014 Substantive Appeal. The interested party (H.L.) should also be advised of her hearing and representation rights. 38 C.F.R. § 19.100. A remand is appropriate so that these actions may be accomplished. Second, a party to a simultaneously contested claim may file a brief or argument in answer to a Substantive Appeal filed by another contesting party within 30 days from the date the content of the Substantive Appeal is furnished as provided in § 19.102. See 38 C.F.R. § 20.502. Therefore, the interested party (H.L.) should then be given 30 days to respond with a brief or argument. A remand is appropriate so that this action may be accomplished. In the present case, the central issue from the appellant (K.L.'s) perspective is whether she meets the surviving spouse requirement of "continuous cohabitation" with the Veteran under 38 C.F.R. § 3.53. See also 38 C.F.R. § 3.50(b)(1). At the time of the Veteran's death in August 2008 in West Virginia, the appellant (K.L.) was incarcerated in California for a parole violation. She maintains this was the only reason she and the Veteran were not living together in their home in Riverside County, California. However, there is some contradictory / inconsistent evidence of record, in that the appellant also testified that she did not learn about the Veteran's death until two weeks after his death, which is odd. See August 2017 videoconference hearing at page 14. 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. Third, since the appeal is already being remanded for other reasons, the AOJ should give the appellant (K.L.) the opportunity to submit further evidence relative to the central issue of "continuous cohabitation." As previously requested in February 2014 and March 2014 and August 2014 VCAA letters, the appellant (K.L.) should be asked to submit written evidence of the specific dates of her incarceration, the name of her parole officer, the incarceration papers themselves, and written evidence that the home she shared with the Veteran in Riverside, California was jointly titled. See August 2017 videoconference hearing at page 16. Fourth, in the instant case, a remand is required for the AOJ to request that the Veteran's sister, P.L., and any other relatives the interested party H.L. may identify, complete statements concerning their understanding of the circumstances surrounding the Veteran's marriage and separation with the appellant (K.L.) in the 2000s. It appears from the record that both the Veteran's sister (P.L.) and the interested party (H.L.) cared for the Veteran during his final illness in 2007 and 2008. On this issue, the statements of the surviving spouse (K.L.) as to the reason for the separation will be accepted in the absence of contradictory information. 38 C.F.R. § 3.53(b). On a similar note, VBA's Live Manual indicates that, if there is conflicting evidence, the AOJ may ask relatives of the Veteran to furnish statements concerning their understanding of the circumstances surrounding the Veteran's marriage and any separation for purposes of establishing continuous cohabitation. See VBA Live Manual M21-1, III.iii.5.E.6.e-f (change date April 26, 2015). The reason for this request is some evidence of record exists that contradicts the statements of the appellant (K.L.) on the issue of continuous cohabitation. See 38 C.F.R. § 3.53(b). For example, at the November 2013 DRO hearing, the appellant (K.L.) testified under oath that she did not know who H.L. was, but that H.L. was the first to tell her by phone that the Veteran had died. See DRO testimony at pages 8-9. In contrast, at the August 2017 videoconference hearing, the appellant (K.L.) inconsistently testified under oath that she found out about the Veteran's death from her parents, but not from H.L., and that she knew who H.L. was (her previous neighbor in California). See videoconference testimony at pages 11-12. It also does not make sense that if the appellant (K.L.) was close to the Veteran, that she did not know he was dying in 2007 and 2008, and only found out about his death two weeks thereafter. Fifth, after any additional evidence discussed above is received, or if a brief or argument or other evidence from the interested party (H.L.) is received in response to the SOC and Substantive Appeal, or if otherwise necessary, the AOJ should issue a Supplemental Statement of the Case (SSOC) for the issue on appeal of entitlement to recognition as the Veteran's surviving spouse, following the contested claim procedures. See 38 C.F.R. § 20.501(c). The SSOC should be issued to both the appellant (K.L.) and the other contesting party (H.L.). Accordingly, the case is REMANDED for the following action: 1. The AOJ must review the claims file and ensure that all contested claims procedures have been followed. See 38 C.F.R. §§ 19.100 -19.102, 20.500-20.504 and VBA Live Manual M21-1, Part III, Subpart vi, Chapter 6. In the present case, the contesting parties for the issue on appeal (recognition as a surviving spouse) are the appellant (K.L.) and the interested party (H.L.). In particular, the AOJ must furnish to the interested party (H.L.) a copy of the content of the May 2014 SOC and the May 2014 Substantive Appeal (VA Form 9), which was filed by K.L. See 38 C.F.R. §§ 19.101, 19.102. The interested party (H.L.) should also be advised of her hearing and representation rights. 38 C.F.R. § 19.100. 2. After step 1 is completed, allow the interested party (H.L.) a period of 30 days to file a brief or argument in answer thereto in accordance with 38 C.F.R. § 20.502. 3. After steps 1 and 2 are completed, the AOJ should give the appellant (K.L.) the opportunity to submit further evidence relative to the central issue of "continuous cohabitation." As previously requested in February 2014 and March 2014 and August 2014 VCAA letters, the AOJ should again ask the appellant (K.L.) to submit written evidence of the specific dates of her incarceration, the name of her parole officer, the incarceration papers themselves, and written evidence that the home she shared with the Veteran in Riverside, California was jointly titled (see August 2017 videoconference hearing at page 16). 4. After steps 1 and 2 are completed, the AOJ should request that the Veteran's sister in West Virginia (P.L.), and any other relatives the interested party (H.L.) identifies, complete a statement(s) concerning their understanding of the circumstances surrounding the Veteran's marriage and separation with the appellant (K.L.) in the 2000s. The interested party (H.L.) should be asked to identify any other relatives who would have personal knowledge of the circumstances surrounding the Veteran's marriage and separation with the appellant (K.L.). The request for information should ask at what times did the Veteran and the appellant (K.L.) live together as husband and wife; was there any misconduct on the part of the Veteran that caused the separation; was there any misconduct by the appellant (K.L.) that led to the Veteran's separation from her; was there any intent by the appellant (K.L.) to end the marriage to the Veteran at the time of separation; did the appellant (K.L.) ever live with another person of the opposite sex and hold herself out openly to the public to be the spouse of such person? The AOJ should document any responses to these questions in the claims file. If no response is received, or a party cannot be located, the AOJ should also note it in the record. 5. After completion of steps 1-4, after any additional evidence discussed above is received or secured, the AOJ should issue a Supplemental Statement of the Case (SSOC) for the issue on appeal of entitlement to recognition as the Veteran's surviving spouse, following the contested claim procedures. See 38 C.F.R. § 20.501(c). The SSOC should be issued to both the appellant (K.L.) and the other contesting party (H.L.). (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) The appellant (K.L.) and the interested party (H.L.) have the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).