Citation Nr: 18149215 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 16-46 929 DATE: November 9, 2018 ORDER New and material evidence having been received, the appellant’s application to reopen the issue of whether she may be recognized as the Veteran’s surviving spouse for VA purposes is granted. The appellant may not be recognized as the Veteran’s surviving spouse for VA purposes and the claim is, therefore, denied. FINDINGS OF FACT 1. In an unappealed August 1996 decisional letter, VA denied the appellant’s claim for Dependency and Indemnity Compensation (DIC) based on a finding that she could not be recognized as the Veteran’s surviving spouse for VA purposes. 2. The additional documentation submitted since the August 1996 decisional letter is new and material and raises a reasonable possibility of substantiating the appellant’s claim. 3. The appellant and the Veteran married in April 1975 and divorced in April 1993. 4. The Veteran died in October 1993, after the appellant’s and Veteran’s marriage ended. CONCLUSIONS OF LAW 1. The August 1996 decisional letter denying entitlement to DIC based on a finding that the appellant could not be recognized as the Veteran’s surviving spouse for VA purposes is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018). 2. New and material evidence sufficient to reopen the issue of whether the appellant may be recognized as the Veteran’s surviving spouse for VA purposes has been presented. 38 U.S.C. §§ 5103, 5103A, 5107, 5108 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326(a) (2018). 3. The appellant is not the Veteran’s surviving spouse for VA purposes. 38 U.S.C. §§ 101(3), 103(c), 5107 (2012); 38 C.F.R. § 3.1(j), 3.50(b), 3.52, 3.53, 3.205 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1983 to October 1993, until his death. The appellant seeks to establish herself as the Veteran’s surviving spouse for VA purposes. In the July 2015 decisional letter currently on appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, it was determined that the appellant was not entitled to DIC, death pension, or accrued benefits, because she could not be recognized as the Veteran’s surviving spouse for VA purposes. Whether new and material evidence has been received to reopen the issue of whether the appellant may be recognized as the Veteran’s surviving spouse for VA purposes. Generally, absent the filing of a notice of disagreement (NOD) within one year of the date of mailing of the notification of the initial review and determination of an appellant’s claim and the subsequent filing of a timely substantive appeal, a rating determination is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error (CUE). 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 20.200, 20.300, 20.1103. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means 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). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The provisions of 38 C.F.R. § 3.156 (a) create a low threshold, with the phrase “raises a reasonable possibility of substantiating the claim” enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010); Evans v. Brown, 9 Vet. App 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). In an August 1996 decisional letter, VA denied the appellant’s claim for DIC after determining that she could not be recognized as the Veteran’s surviving spouse for VA purposes as the appellant and Veteran’s marriage was terminated on April 12, 1993, prior to the Veteran’s death. The appellant was informed of her appellate rights in that letter; however, she did not submit an NOD or new and material evidence within one year of that determination. Therefore, the August 1996 decisional letter is final. At the time of the August 1996 decisional letter, the record contained the following pertinent evidence: a marriage certificate issued by Wayne County, Michigan in March 1975, showing that the Veteran and appellant were married in April 1975; an April 1993 final judgement of dissolution of marriage showing that the marriage between the Veteran and appellant was dissolved because it was irretrievably broken; a July 1996 statement from the appellant, in which she stated that the evidence showed the couple had remained as if married before, during, and after the divorce up until the Veteran’s final tour of duty that took him on assignment which led to his demise; a lease agreement on a townhouse showing that the Veteran and appellant had both completed it after the date of divorce; and documents showing that the Veteran and appellant shared utility bills after the date of divorce. The appellant submitted the lease agreement and utility bills in support of her contention that she and the Veteran intended to live as a married couple post-divorce. The additional documentation received since the August 1996 decision consists of the appellant’s statements indicating the emotional and physical abuse she endured from the Veteran that had led to the divorce, and that they had planned to remarry after the Veteran completed treatment for his alcohol abuse. She also submitted treatment records documenting the physical abuse and the Veteran’s participation in the Department of the Navy’s drug and alcohol abuse program. The appellant also highlighted the exception in the laws and regulations for spouses that have been physically and emotionally abused and separated from the abuser Veteran that would otherwise be denied dependency and indemnity compensation for such separation. Presuming the credibility of the appellant’s written statements solely for the purpose of reviewing the appellant’s application to reopen, the Board finds that her statements are of such significance that they raise a reasonable possibility of substantiating her claim to be considered as the Veteran’s surviving spouse for VA purposes. As new and material evidence has been received, the issue of whether the appellant may be recognized as the Veteran’s surviving spouse for VA purposes is reopened. Entitlement to status as a surviving spouse for the purpose of establishing entitlement to VA death benefits. The appellant asserts that she is entitled to VA death benefits. In her application she acknowledged that she and the Veteran divorced in 1993, but noted that her relationship to the Veteran was that of his wife. Specifically, she contends she should be still recognized as the Veteran’s surviving spouse because their divorce was due to the Veteran’s misconduct; namely, abuse. In support of her claim, the appellant has submitted medical treatment records and written statements attesting to the fact that the Veteran was abusive. Subject to certain requirements, VA death benefits may be paid to a surviving spouse of a Veteran. 38 U.S.C. § 1102; 38 C.F.R. § 3.54. A “surviving spouse” is defined as a person of the opposite sex who was the spouse of a veteran at the time of the veteran’s death, and 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 who has not remarried or (in cases not involving remarriage) has not since the death of the veteran 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. § 101(3); 38 C.F.R. § 3.50. 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). 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). The U.S. Court of Appeals for Veterans Claims has determined that 38 U.S.C. § 101(3) and 38 C.F.R. § 3.50(b)(1) set forth a two-part test to determine whether a spouse will be deemed to have continuously cohabited with the veteran when there has been a separation. Not only must the spouse be free of fault at the time of the separation, but it must be found that the separation “was due to the misconduct of, or procured by, the veteran.” In assessing the reasons for a separation between a veteran and his or her spouse, fault or the absence of fault is to be determined based on an analysis of conduct at the time of the separation. Gregory v. Brown, 5 Vet. App. 108, 112 (1993). In this case, there is no dispute that the Veteran and appellant were married in April 1975 and divorced in April 1993. The appellant has asserted this in her written statements and the record contains no evidence that contests this. Thus, the appellant was not the Veteran’s surviving spouse when he died in October 1993, as they had divorced. The Board has considered the appellant’s contentions but notes that this case does not turn on a finding of misconduct on the part of the Veteran. The provisions pertaining to whether a separation was due to the fault of the veteran, without any fault on the part of the surviving spouse, are applicable in determining whether married parties continued to cohabitate during their marriage. See 38 C.F.R. § 3.53(a). This regulation presupposes that the parties were married at the time of a veteran’s death. Thus, although a separation due to abuse, without termination of the marriage may entitle a claimant to benefits, in this case, the Veteran and the appellant had divorced. A divorce terminates the marriage, and by extension, breaks the “continuous cohabitation” requirement of 38 C.F.R. § 3.53(a). Furthermore, the Veteran’s marital status was characterized as “divorced” on his death certificate. For these reasons, although the appellant’s divorce may well have been precipitated, at least in part, to abuse perpetrated by the Veteran, there is no basis to award death benefits under the applicable laws and regulations. While the Board is sympathetic to the arguments presented by the appellant, the law is clear and precludes eligibility in this case. Where the law is dispositive, the claim should be denied because of the absence of legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Therefore, the Board has no alternative but to deny the appellant’s appeal as she does not meet the legal criteria for recognition as the “surviving spouse” of the Veteran for purposes of receiving VA death benefits. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Cheng, Associate Counsel