Citation Nr: 20023917 Decision Date: 04/07/20 Archive Date: 04/07/20 DOCKET NO. 17-16 602 DATE: April 7, 2020 ORDER The application to reopen a claim of recognition as the deceased Veteran's surviving spouse for the purpose of establishing eligibility for VA death benefits is granted. Entitlement to recognition of the appellant as the deceased Veteran's surviving spouse for the purpose of establishing eligibility for VA death benefits is granted. FINDINGS OF FACT 1. The appellant’s claim of recognition as the deceased Veteran’s surviving spouse was originally denied in an October 2010 decision on the basis that the appellant and the Veteran were divorced at the time of the Veteran’s death; the appellant did not appeal this decision within one year of its issuance and new and material evidence was not received within that year. 2. The appellant’s claim of recognition as the deceased Veteran’s surviving spouse was readjudicated on a de novo basis and again denied in a March 2014 decision on the basis that the appellant and the Veteran did not live continuously from the date of their marriage until the Veteran’s death; additional relevant evidence was received following the March 2014 decision and the appellant’s claim was readjudicated on a de novo basis and again denied in a June 2014 decision on the basis that the appellant and the Veteran were divorced at the time of the Veteran’s death; the appellant did not appeal this decision within one year of its issuance and new and material evidence was not received within that year. 3. Evidence received since the June 2014 agency of original jurisdiction (AOJ) decision includes information that was not previously considered and which relates to an unestablished fact necessary to substantiate the claim of recognition as the deceased Veteran’s surviving spouse. 4. The Veteran and the appellant were legally married in December 1973, remained legally married until the Veteran’s death, and any separation was due to the misconduct of the Veteran, without the fault of the appellant. CONCLUSIONS OF LAW 1. The AOJ’s October 2010 and June 2014 decisions which denied the claim of recognition as the deceased Veteran’s surviving spouse are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(a)-(b), 19.52(a) 20.1103. 2. The evidence received since the June 2014 AOJ decision is new and material and reopening of the claim of recognition as the deceased Veteran’s surviving spouse is therefore warranted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. The criteria for recognition of the appellant as the deceased Veteran’s surviving spouse for the purpose of establishing eligibility for VA death benefits have been met. 38 U.S.C. §§ 101 (3); 38 C.F.R. §§ 3.1 (j), 3.50, 3.53. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1965 to July 1971. He died in May 2010. These matters come before the Board of Veterans’ Appeals (Board) from an August 2015 decision. The appellant testified before the undersigned Veterans Law Judge (VLJ) at a March 2020 hearing. A transcript of the hearing has not yet been associated with the claims file. However, in light of the fact that the Board is granting the application to reopen the claim of recognition as the deceased Veteran’s surviving spouse for the purpose of establishing eligibility for VA death benefits and is granting the underlying claim, and the fact that there is no information in the hearing transcript that will affect the decision herein, the transcript is not necessary at this time. As for characterization of the issues on appeal, the AOJ adjudicated the claim of recognition as the deceased Veteran’s surviving spouse on a de novo basis in the August 2015 decision and a March 2017 statement of the case (SOC). As explained in more detail below, the AOJ denied the claim of recognition as the deceased Veteran’s surviving spouse in final October 2010 and June 2014 decisions. Where the claim in question has been finally adjudicated, the Board must initially determine whether new and material evidence has been submitted with regard to the claim of recognition as the deceased Veteran’s surviving spouse. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Only where the Board concludes that new and material evidence has been received does it have jurisdiction to consider the merits of this claim. Hickson v. West, 11 Vet. App. 374, 377 (1998). Thus, the Board has included the issue of whether new and material evidence has been received to reopen the claim of recognition as the deceased Veteran’s surviving spouse. As a final preliminary matter, the Board acknowledges that the claims file includes a December 2017 administrative decision in which the AOJ determined that the marriage between the appellant and Veteran was deemed valid for VA purposes. It is unclear, however, the extent to which this decision was ever implemented or whether the appellant was ever notified of this decision. In light of this fact and the fact that the Board similarly finds that the appellant is the deceased Veteran’s surviving spouse for the purpose of establishing eligibility for VA death benefits, the Board will proceed to adjudicate the issues on appeal. I. Application to Reopen Generally, an AOJ decision denying a claim which has become final may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (d)(3). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as 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). The newly presented evidence is presumed to be credible for purposes of determining whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The application to reopen a claim of recognition as the deceased Veteran’s surviving spouse for the purpose of establishing eligibility for VA death benefits The AOJ initially denied the appellant’s claim of recognition as the deceased Veteran’s surviving spouse in an October 2010 decision on the basis that the appellant and the Veteran were divorced at the time of the Veteran’s death. The appellant was notified of the AOJ’s October 2010 decision, she did not appeal the decision within one year of its issuance, and new and material evidence was not received within that year. Therefore, the October 2010 decision became final. See 38 U.S.C. § 7105 (d)(3); Bond, 659 F.3d at 1362; 38 C.F.R. §§ 3.104, 3.156(a)-(b), 19.52(a), 20.1103. The AOJ readjudicated the appellant’s claim of recognition as the deceased Veteran’s surviving spouse on a de novo basis and again denied the claim in a March 2014 decision on the basis that the appellant and the Veteran did not live continuously from the date of their marriage until the Veteran’s death. Additional relevant evidence was received following the March 2014 decision and the appellant’s claim was readjudicated on a de novo basis and again denied in a June 2014 decision on the basis that the appellant and the Veteran were divorced at the time of the Veteran’s death. The appellant was notified of the AOJ’s June 2014 decision, she did not appeal the decision within one year of its issuance, and new and material evidence was not received within that year. Therefore, the June 2014 decision became final. See Id. The pertinent new evidence received since the June 2014 denial of the appellant’s claim of recognition as the deceased Veteran’s surviving spouse includes a December 2014 “Affidavit to Amend a Record” from the State of California. This additional evidence reflects that the Veteran’s death certificate was amended to reflect that the Veteran was married at the time of his death and that the appellant was his surviving spouse. Therefore, the additional evidence pertains to an element of the claim that was previously found to be lacking and raises a reasonable possibility of substantiating the claim by indicating that the appellant was the Veteran’s surviving spouse at the time of his death. The evidence is, therefore, new and material, and the claim of recognition as the deceased Veteran’s surviving spouse is reopened. II. Recognition as Surviving Spouse In order to be recognized as a veteran's surviving spouse for the purpose of establishing eligibility to VA death benefits, the appellant must be a person whose marriage to the 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 the fault of the spouse; and (2) except as provided in 38 C.F.R. § 3.55, has not remarried or has not since the death of the veteran and after September 19, 1962, 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). The statement of the surviving spouse as to the reason for the separation will be accepted in the absence of contradictory information. 38 C.F.R. § 3.53(b). "Marriage" means a marriage valid under the law of the place where the parties resided at the time of the marriage, or the law of the place where the parties resided when the right to benefits accrued. 38 C.F.R. § 3.1 (j). Entitlement to recognition of the appellant as the deceased Veteran's surviving spouse for the purpose of establishing eligibility for VA death benefits The Board finds, for the following reasons, that the appellant and the Veteran were legally married at the time of the Veteran’s death and that while they did not continuously live together from the date of marriage to the date of the Veteran’s death, their separation was due to the misconduct of the Veteran without the fault of the appellant. A Certificate of Registry of Marriage from the State of California reflects that the appellant and the Veteran were legally married in December 1973. There is no evidence that the appellant and the Veteran were ever legally divorced prior to the Veteran’s death in May 2010 and his amended death certificate completed in December 2014 indicates that he was married to the appellant at the time of his death. The Board acknowledges that there is evidence that the Veteran and the appellant were separated at the time of the Veteran’s death and did not continuously live together from the date of their marriage to the date of the Veteran’s death. For instance, a July 2006 VA internal medicine admission evaluation note indicates that the Veteran had been separated from his wife for many years. In this regard, statements from the appellant, K.W., and R.W., all dated in May 2017, indicate that the appellant and the Veteran were separated due to the Veteran’s drug use and domestic violence, but that they never got divorced, they still talked and saw one another, and the Veteran continued to provide the appellant with financial assistance. (Continued on the next page)   The above evidence reflects that the appellant and the Veteran remained legally married from December 1973 to the date of the Veteran’s death. To the extent that the Veteran and the appellant were separated during their marriage, the evidence supports a finding that any such separation was due to the misconduct of the Veteran without the fault of the appellant. Therefore, recognition as the deceased Veteran’s surviving spouse for the purpose of establishing eligibility to VA death benefits is warranted. See 38 U.S.C. § 101 (3); 38 C.F.R. § 3.50. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Elwood, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.