Citation Nr: 18140309 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 15-30 886 DATE: October 2, 2018 ORDER As new and material evidence has been received, the claim of recognizing the Appellant as the surviving spouse of the Veteran for the purpose of entitlement to dependency and indemnity compensation (DIC) is reopened. The appeal seeking recognition of the Appellant as the surviving spouse of the Veteran for DIC is granted. FINDINGS OF FACT 1. In a March 2013 decision, a Department of Veterans Affairs (VA) Regional Office (RO) denied the Appellant’s claim seeking recognition as the Veteran’s surviving spouse for the purpose of DIC. 2. Evidence received since the March 2013 decision relates to a previously unestablished element of the claim and raises a reasonable possibility of substantiating the Appellant’s claim seeking recognition as the Veteran’s surviving spouse for the purpose of DIC. 3. The Veteran and the Appellant were married in April 1971. 4. The Veteran died in February 2000. 5. The evidence does not show a valid divorce. Therefore, the Veteran and the Appellant remained married until the time of the Veteran’s death. 6. The Appellant has not remarried. 7. Prior to the Veteran’s death, the Veteran and the Appellant did not cohabitate continuously. But, the separation was due to the misconduct of, or procured by, the Veteran without the fault of the Appellant. CONCLUSIONS OF LAW 1. The March 2013 decision is final; new and material evidence has been received to reopen the claim of recognizing the Appellant as the surviving spouse of the Veteran for the purpose of entitlement to DIC. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156(a), 20.1110, 20.1104. 2. The Appellant has met the criteria for recognition as the Veteran’s surviving spouse for the purpose of entitlement to DIC. 38 U.S.C. §§ 101 (3), 1102, 1304, 1310, 1311, 1541, 5107; 38 C.F.R. §§ 3.1(j), 3.50, 3.54, 3.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1966 to October 1968 and from January 1971 to December 1975, including service in the Republic of Vietnam. The Veteran died in February 2000 and the Appellant claims recognition as his surviving spouse for the purpose of entitlement to DIC. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 decision of the VA RO and Pension Management Center (PMC) in St. Paul, Minnesota. The Appellant and J.S. testified at a Board hearing in September 2016 before the undersigned Veterans Law Judge. A transcript of the hearing is of record. 1. New and Material Evidence The Appellant’s claim for recognition as the Veteran’s surviving spouse was initially denied in a March 2013 decision. The Appellant did not appeal this decision or submit evidence within one year. Therefore, that decision became final. Generally, if a claim has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence considered at the time of the March 2013 decision consisted of: a VA Form 21-534 Application for Death Pension, Dependency and Indemnity Compensation, and Accrued Benefits by a Surviving Spouse or Child; the Veteran’s service records; the Veteran’s death certificate; the Veteran’s birth certificate; a VA Form 21-22 Appointment of Veterans Service Organization as Claimant’s Representative; and a divorce decree from the Veteran’s previous marriage. The Appellant’s claim was denied because the RO determined that the Veteran and the Appellant were divorced at the time of the Veteran’s death. Evidence received since the March 2013 decision consists of statements by the Appellant and other laypersons, VA treatment records for the Veteran dated between January 2000 and February 2000, and testimony given at a Board hearing in September 2016. This evidence is “new,” as it was not previously submitted to agency decision makers. Some of it is also “material,” as it addresses the reason for the prior denial. Specifically, it speaks to the issue of whether the Veteran and Appellant remained married up until the Veteran’s death. Accordingly, as this new evidence relates to an unestablished fact that is necessary to substantiate the Appellant’s claim, the Board finds that new and material evidence has been received. As such, the Appellant’s claim will be reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). 2. Recognition as the Veteran’s Surviving Spouse VA death benefits may be paid to a surviving spouse who was married to the veteran for: (1) one year or more prior to the veteran’s death; or (2) 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. §§ 1102, 1304, 1541; 38 C.F.R. § 3.54. One claiming to be the spouse of a veteran has the burden to come forward with a preponderance of evidence of a valid marriage under the laws of the appropriate jurisdiction. See Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). The term “surviving spouse” is defined as a person who: (1) was the lawful spouse of a veteran at the time of the veteran’s death; (2) 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 (3) has not remarried. 38 U.S.C. § 101(3); 38 C.F.R. § 3.50(b)(1); see Gregory v. Brown, 5 Vet. App. 108 (1993); see also VA O.G.C. Prec. Op. No. 3-2014. Further, the surviving spouse must not have lived with another person and held him- or herself out openly to the public to be the spouse of such other person. 38 C.F.R. § 3.50(b)(2). The continuous cohabitation requirement has been met when the evidence shows that any separation was due to the misconduct of, or procured by, the veteran without fault of the surviving spouse. Temporary separations which 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). 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. If the evidence establishes that the separation was either procured by the veteran, or was by mutual consent and that the parties lived apart for purposes of convenience, health, business, or any other reason that 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. See 38 C.F.R. § 3.53 (b); see also Alpough v. Nicholson, 490 F.3d 1352 (Fed. Cir. 2007). 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). Consequently, the United States Court of Appeals for 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.” Alpough, 490 F.3d at 1357. The record reflects that the Veteran and the Appellant were married in April 1971. Although the RO initially determined that the Veteran and Appellant were divorced pursuant to a designation on the Veteran’s death certificate, the record demonstrates that they never divorced. Indeed, the Board notes that the Appellant and Veteran’s Report and Certificate of Marriage has been associated with the claims file, but a divorce decree terminating their marriage has never been produced. Accordingly, the Board finds that the Appellant and Veteran were legally married at the time of the Veteran’s death in February 2000. The question then turns to the continuous cohabitation requirement. Throughout the course of the appeal, the Appellant has consistently stated that the Veteran abandoned her some time in 1998 and that she only learned of his death years later. See, e.g., Hearing Tr. at 4. Thus, the only remaining issue on appeal is whether the Appellant and the Veteran were separated at the time of his death temporarily or due to the misconduct of, or procured by the Veteran, without the Appellant’s fault. In several statements received by the Board in October 2016, numerous friends of the Appellant and the Veteran all testified that: (1) the Appellant was born in South Korea, married the Veteran, and moved to Hawaii at the Veteran’s request while he served in the Republic of Vietnam; (2) the Appellant worked in Hawaii and had difficulties due to limited English-language abilities; (3) the Veteran came to Hawaii to live with the Appellant at some time in 1975; (4) from the time he arrived in 1975, the Veteran abused alcohol; (5) the Veteran depended upon the Appellant to support him financially and often emotionally abused and threatened the Appellant; (6) the Veteran left the Appellant in Hawaii at some point in 1998 and did not inform her of his whereabouts; and (7) the Appellant unsuccessfully attempted to find her husband after his 1998 departure. Additionally, at the September 2016 Board hearing, the Appellant testified that she never remarried and that she kept a home available for the Veteran in case he ever returned. See Hearing Tr. at 24. The Board notes that there has been no evidence submitted to contradict the assertions that the separation was solely due to the Veteran with no fault on the part of the Appellant. Considering the above, the Board finds that the Appellant meets the definition of a surviving spouse for the purpose of establishing entitlement to DIC. The Appellant was the Veteran’s spouse at the time of his death, and it has not been shown that the Appellant has remarried or has held herself out to be the spouse of another. Further, although the Appellant and the Veteran did not live together continuously at the time of the Veteran’s death, the most probative evidence of record supports her contention that the separation was due to the Veteran’s own misconduct. Accordingly, the Board grants the Appellant’s appeal. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.S. Pettine