Citation Nr: 1806200 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 11-21 075A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in St. Paul, Minnesota THE ISSUE Entitlement to recognition of the appellant as the deceased Veteran's surviving spouse for the purpose of establishing eligibility for VA death benefits. (The issue of entitlement to eligibility for Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPVA) benefits for the Appellant is the subject of a separate decision by the Board.) ATTORNEY FOR THE BOARD Sara Kravitz, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1961 to November 1963 and from November 1965 to March 1973. He died in March 2013. The appellant is claiming to be the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from a July 2013 decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In that decision, the RO denied entitlement to Dependency and Indemnity Compensation, death pension benefits, and accrued benefits on the basis that the appellant was not the surviving spouse of the Veteran. Thus, the Board has characterized the issue on appeal as stated above. The appellant's claim was remanded by the Board most recently in September 2016. The claim has been returned to the Board for further adjudication. FINDINGS OF FACT 1. The appellant and the Veteran have been legally divorced since March 2003 in accordance with a Missouri Family Court Judgment. 2. There has been no finding of fraud with regard to the Missouri Family Court Judgment ordering dissolution of the marriage between the appellant and the Veteran. CONCLUSION OF LAW The criteria for entitlement to a finding of surviving spouse status for the purpose of eligibility for VA death benefits are not met. 38 U.S.C. §§ 101, 5107 (2012); 38 C.F.R. §§ 3.1, 3.50, 3.52, 3.53, 3.54, 3.102 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The appellant has not raised any issues with 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). Analysis The appellant seeks recognition as the Veteran's surviving spouse for the purpose of eligibility for VA death benefits (DIC, death pension, and accrued benefits). In order for the appellant to be recognized as a surviving spouse, the evidence must support that the claimant was the Veteran's spouse at the time of death and that the claimant lived continuously with the Veteran from the date of marriage to the date of the Veteran's death. 38 U.S.C. §§ 101 (3), 5124(c) (2012); 38 C.F.R. §§ 3.205(a), 3.206 (2017). When a veteran dies, his or her surviving spouse may be eligible to VA death benefits, to include DIC benefits, death compensation, and death pension. See 38 U.S.C. §§ 1121, 1310, 1541; 38 C.F.R. § 3.50(a). VA DIC benefits are payable to a surviving spouse who was married to a veteran: (1) within 15 years of the end of the period of service in which the injury or disease causing the veteran's death was incurred or aggravated; or (2) one year or more; or (3) for any period of time if a child was born of the marriage, or was born to them before the marriage. 38 U.S.C. § 1304; 38 C.F.R. § 3.54(c). Consequently, "surviving spouse" status is a threshold requirement for DIC, death pension, and accrued benefits. A surviving spouse for VA purposes is defined as a person whose marriage to a 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 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. See 38 C.F.R. §§ 3.50(b), 3.53. A surviving spouse may qualify for pension, compensation, or dependency and indemnity compensation under the appropriate circumstances. See 38 C.F.R. § 3.54. The appellant has the burden to establish her status as claimant. Sandoval v. Brown, 7 Vet. App. 7, 9 (1994). Marriage means a marriage 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 CFR 3.1(j) (2017). Proof of divorce or termination of a prior marriage can be established by a certified copy or certified abstract of final decree of divorce or annulment specifically reciting the effects of the decree. 38 C.F.R. § 3.205(b) (2017). The validity of a divorce decree, regular on its face, will be questioned by VA only when such validity is put in issue by a party thereto or a person whose interest in a claim for VA benefits would be affected thereby. 38 C.F.R. § 3.206. In cases where recognition of the decree is thus brought into question, where the issue is whether the Veteran was single or married (dissolution of a subsisting marriage), there must be a bona fide domicile in addition to the standards of the granting jurisdiction respecting validity of divorce. 38 C.F.R. § 3.206(a). Where the issue is the validity of marriage to a Veteran following a divorce, the matter of recognition of the divorce by VA will be determined according to the laws of the jurisdictions specified in § 3.1(j). 38 C.F.R. § 3.206(b). In the instant case, the appellant seeks recognition as the deceased Veteran's surviving spouse for the purpose of establishing eligibility for VA death benefits. The appellant has put forth contentions to the effect that the 2003 divorce was not valid. In effect, she argues that she was not properly served with notice of the proceeding and that the divorce was fraudulently obtained based upon an affirmation that she and the Veteran did not have any minor children. Evidence shows that the appellant divorced her prior husband in January 1979. A birth certificate of record indicates that the appellant gave birth to a child in January 1986 and lists the Veteran as the father. The individual who informed the Department of Health of the birth was also listed as the Veteran. The Veteran divorced his prior wife in Oklahoma in April 1986. The decree stated that neither party shall marry a third party for a period of six months from the date of the decree. The records reveal that the Veteran and the appellant were married in Arkansas in April 1986, two days after the issuance of the decree of divorce. In June 1986, the appellant reported that she was separated from her husband. In July 1986 the appellant reported that she was at a shelter for battered women. In a July 1986 statement the appellant asked that VA not divulge her whereabouts due to the Veteran's abusive behavior. The Veteran petitioned for annulment of the marriage in August 1986. The petition argued that the Veteran was deserted by the appellant. The Veteran also requested that VA stop benefit payments to the appellant. A statement on a Social Security Administration form indicates that the Veteran was asked to contact someone regarding the validity of his marriage. In January 1987, the appellant requested that the information regarding her be kept confidential. In August 1992, the Veteran reported that he divorced the appellant in 1986 to 1987 and that he did not know where she was. In a statement dated in November 1988 the Veteran denied children with the appellant and reported that he never adopted any of her children. A Family Court Judgment from Missouri, dated in March 2003, indicates that the marriage of the Veteran and the appellant is dissolved. The Veteran appeared in person and the appellant remained in default and failed to appear. It is noted that there were no minor children and the appellant was not pregnant. In a will dated in September 2003, the appellant identified the Veteran as her husband. In March 2009, the appellant reported that she did not divorce the Veteran and that if he divorced her in 2003 she was never served with papers of the divorce. In February 2011, the appellant argued that the divorce was not legal since the Veteran obtained a non-contested divorce without children, even though they had two children. In 2013, the appellant submitted a DIC claim. In response to a request for further information to the Missouri court that issued the divorce decree in March 2003, in September 2015 additional documents regarding the divorce were associated with the claims file. These documents include a signed statement by the Veteran's attorney that return of service indicated the appellant could not be found. In February 2015, the appellant argued that the Veteran was not competent to file for divorce and that a family member informed VA erroneously of their divorce. In September 2015, the appellant submitted a copy of Respondent's Motion and Memorandum to set Aside Default Judgment on the Basis of Fraud Pursuant to Mo. Rev. Stat. § 516.120(5). This motion was to argue that the divorce be set aside. There is no indication that this document was filed in Missouri. In the document the appellant, via her attorney, argued that the Veteran had full knowledge of the appellant's address and that the appellant was not properly served. In addition, it was argued that the Veteran committed fraud by affirming under oath that the parties had no minor children born of the marriage when, at the time of the divorce, they had a 17 year old child. In a statement received in December 2015, the appellant reported that there would be no further legal proceeding because the Veteran could not be served with papers as he was deceased. In February 2016, the appellant noted that she had been in receipt of VA benefits until 2008 because the Veteran had not notified VA of the divorce until then, and that she had also been in receipt of Social Security benefits due her marriage. In the September 2016 Remand, the Board found that a Regional Counsel opinion was necessary in order to comply with provisions of 38 C.F.R. § 3.206. In March 2017, the VA Office of Chief Counsel - Midwest District West submitted a Regional Counsel Opinion on the Family Court Judgement in regards to the appellant's claims that the dissolution judgment is void because the deceased Veteran obtained dissolution through fraud, specifically in failure of service and intrinsic fraud regarding failure to name minor children. The opinion noted that in the absence of a ruling to set aside the dissolution judgment, the divorce is valid. The divorce may be voidable, if the appellant can prove fraud, but she must do so in the courts, not within VA. The Opinion noted that a final judgment may be set aside for intrinsic or extrinsic fraud, if a motion is filed within one year of the date the judgment was entered. Rule 74.06(b-c); Pope v. State, 819 S.W.2d 397, 399 (Mo.App. E.D. 1991). After one year from the date of the judgment, the judgment is subject to attack only by an independent action in equity upon a demonstration of extrinsic fraud when the basis of relief is fraud. Id. Extrinsic fraud is limited to the fraudulent procurement of a judgment; it must relate to the manner in which the judgment was obtained and not the merits of the judgment itself. State ex rel. Seals v. McGuire,608 S.W.2d 407, 409 (Mo. 1980). The Opinion found that the Veteran's testimony that there were no minor children of the marriage when there was one minor child would constitute intrinsic fraud. Fraud is intrinsic, if it "relate[s] to potentially false averments made to the court in the dissolution proceeding." Reimer v. Hayes, 365 S.W.3d 280, 283-284, 2012 Mo. App. (Mo. Ct. App. 2012). The Opinion therefore found that the Veteran's claim that there were no minor children is a false statement made during the dissolution hearing, and is, therefore, intrinsic fraud. The Opinion noted the appellant did not raise the issue of intrinsic fraud within one year of judgment under rule 74.06(c), so she would not prevail on a fraud claim from that action. With regard to her other contention, the Opinion noted that the Appellant would need to prove to the court that the failure of service by the Veteran amounted to an intentional misrepresentation of the divorce proceedings, and that the Veteran intentionally misrepresented the dissolution hearing despite twice exerting effort to serve her, using two different methods and that this misrepresentation caused her harm. Overall, the Opinion found that the divorce remains valid and voidable, unless and until Appellant can prove in court the necessary elements of extrinsic fraud relating to improper service. In the instant case, there is no indication that the appellant has pursued a successful claim for extrinsic fraud related to improper service in court, as the appellant reported that she had discontinued legal proceedings in December 2015. As noted above, the General Counsel Opinion found that, in the absence of a ruling to set aside the dissolution judgment, the divorce is valid. The divorce may be voidable, if the Appellant can prove fraud, but she must do so in the courts, not within VA. Nor is there any indication that a Family Court in Missouri found that the Veteran was not competent to file divorce. Thus the Appellant's argument that the VA can set aside a valid divorce in the state of Missouri lacks merit. Where the issue is the validity of marriage to a Veteran following a divorce, the matter of recognition of the divorce by VA will be determined according to the laws of the jurisdictions specified in § 3.1(j). The laws of Missouri, where the dissolution of marriage was ordered, clearly establish a valid divorce recognized by the state and thus by VA. 38 C.F.R. § 3.206(b). As the appellant and the Veteran are found the be divorced, the appellant is not entitled to eligibility as a surviving spouse. See 38 C.F.R. §§ 3.50(b), 3.53. She was not the spouse of the Veteran at the time of the Veteran's death; and she did not live with the Veteran continuously from the date of marriage to the date of the Veteran's death, as the record reflects the appellant has been living in Oklahoma, while the Veteran was residing in Missouri and Illinois prior to his death. See 38 C.F.R. §§ 3.50(b), 3.53. Finally, with respect to Appellant's claim that she is entitled to VA benefits because she has been recognized as the Veteran's widow by the SSA (and receives SSA benefits), in the case of Collier v. Derwinski, 1 Vet. App. 413, 417 (1991), the Court noted that there are "significant differences" in the definition of disability under the statutes and regulations governing SSA adjudications on the one hand and those governing VA regulations on the other. Also, 38 U.S.C. § 7104(c) states that "[t]he Board shall be bound in its decisions by regulations of [VA]." ORDER 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. ____________________________________________ G. A. WASIK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs