Citation Nr: 20041925 Decision Date: 06/19/20 Archive Date: 06/19/20 DOCKET NO. 18-08 110 DATE: June 19, 2020 ORDER Recognition of the appellant as the Veteran’s dependent spouse for Department of Veterans Affairs (VA) purposes for the period prior to the Veteran’s death is granted. FINDINGS OF FACT 1. The Veteran and the appellant were married in November 1989. 2. The appellant is the Veteran's surviving spouse, who was properly substituted as the claimant to continue the Veteran's pending claim on appeal to completion. 3. In March 1997 and June 1999, the Veteran submitted claims for additional disability compensation benefits based on recognition of the appellant as his dependent spouse for VA purposes; such claims were pending and unadjudicated at the time of the Veteran’s death in June 2016. CONCLUSIONS OF LAW 1. The appellant, who is the Veteran's surviving spouse, is a proper substitute claimant in this case. 38 U.S.C. §§ 101(3), 5121A (2012). 2. The criteria for recognition of the appellant as the Veteran’s dependent spouse for VA purposes for the period prior to the Veteran’s death have been met. 38 U.S.C. §§ 101(31), 1115, 5124 (2012); 38 C.F.R. § 3.1(j), 3.204, 3.205 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1961 to February 1966. Unfortunately, he died in June 2016. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2017 decision of a VA Regional Office (RO). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). . Appellant as Substitute -Claimant When a veteran has claims pending at the time of his death, is surviving spouse may be paid periodic monetary benefits, which were due and unpaid, to which he was entitled at the time of his death based on existing ratings or decisions, or other evidence that was on file when he died. 38 U.S.C. § 5121 (2012); 38 C.F.R. § 3.1000 (2019). The statute regarding accrued benefits claims was amended on October 10, 2008. See Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212 (2008). Section 212 created a new statute, which provided that if a claimant died while a claim or appeal for any benefit under a law administered by VA was pending, a living person who would be eligible to receive accrued benefits due to the claimant may, not later than one year after the date of the death of the claimant, request to be substituted as the claimant for the purposes of processing the claim to completion. See 38 U.S.C. § 5121A. The new statute allows a person who could be considered an accrued benefits claimant to substitute for a deceased claimant to continue adjudication of the deceased claimant's claim. The provisions of the new statute apply with respect to the claim of any claimant who dies on or after October 10, 2008. See Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008). As detailed below, at the time of the Veteran’s June 2016 death, he had pending, unadjudicated claims for additional disability compensation benefits based on recognition of the appellant as his dependent spouse for VA purposes. In October 2016, the appellant submitted VA Form 21-534EZ, Application for DIC, Death Pension, and/or Accrued Benefits, which was also considered a request for substitution with regard to the Veteran's pending claims. See 38 U.S.C. § 5121A. The RO has not formally allowed for the appellant's substitution in the Veteran's claim that was pending at the time of his death, as the RO determined that the Veteran did not have any pending claims at the time of his death. However, the Board finds that the RO in the January 2018 statement of the case found that the appellant as the Veteran’s spouse at the time of his death, thereby implicitly recognizing her as a proper substitute claimant in this matter. Therefore, the Board finds that the Veteran's surviving spouse has been properly substituted for the Veteran. As the Veteran's death occurred after October 10, 2008, the appellant's claim is not one for accrued benefits, but remains the Veteran's original claim into which she is substituted in his stead. Entitlement to recognition of the appellant as the Veteran’s dependent spouse for VA purposes for the period prior to the Veteran’s death. A veteran who is in receipt of disability compensation of 30 percent or more is entitled to an additional allowance for each dependent. 38 U.S.C. § 1115. A “spouse” is defined for VA purposes as a person whose marriage to the veteran is 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), 3.50(a). Under 38 C.F.R. § 3.1(j), “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. A valid marriage may be established by various types of documentary evidence together with the claimant’s certified statement concerning the date, place, and circumstances of dissolution of any prior marriage, provided that such facts, if they were to be corroborated by the evidence, would warrant acceptance of the marriage as valid. 38 C.F.R. § 3.205(a). VA will accept, for purposes of determining entitlement to benefits under laws administered by VA, the statement of a claimant as proof of marriage, dissolution of a marriage, or death of a dependent, provided that the statement contains: the date (month and year) and place of the event; the full name and relationship of the other person to the claimant; and the social security number of the other person. 38 U.S.C. § 5124; 38 C.F.R. § 3.204. Under 38 U.S.C. § 5101(a), a specific claim must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. See also 38 C.F.R. § 3.151(a). The Secretary has authority to prescribe the nature and extent of the proof required in order to establish a right to VA benefits. See 38 U.S.C. § 501. If a claimant's application for a benefit under the laws administered by the Secretary is incomplete, the Secretary shall notify the claimant and the claimant's representative, if any, of the information necessary to complete the application. 38 U.S.C. § 5102(b). If information that a claimant and the claimant's representative, if any, are notified under subsection (b) is necessary to complete an application is not received by the Secretary within one year from the date such notice is sent, no benefit may be paid or furnished by reason of the claimant's application. 38 U.S.C. § 5102(c). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. 38 U.S.C. § 5107(a). The appellant contends that the Veteran was eligible for additional dependency benefits based on recognition of the appellant as his spouse for the period prior to his death. Here, the Veteran’s service-connected disabilities were rated at least 30 percent from March 27, 2012. As such, the threshold criteria of a minimum 30 percent disability rating for basic entitlement to additional payment for dependents were ment for the period from March 27, 2012 until the date of the Veteran’s death in June 2016. 38 U.S.C. § 1115. In a March 1997 claim for disability benefits, the Veteran first notified VA that he and the appellant were married in November 1989 in New York. The Veteran stated that he had been married once before, and provided the dates and places of such marriage and divorce. He indicated that the appellant had not been previously married. The Board finds that this was his initial claim for recognition of the appellant as his dependent spouse for VA purposes. In a June 1999 claim for disability benefits, the Veteran again notified VA that he and the appellant were married in November 1989 in New York. He again provided all of the necessary information about his prior marriage and stated that the appellant had not been previously married. In decisions dated July 1997, September 1997, June 2000, September 2002, May 2006, June 2008, and March 2012, the RO adjudicated multiple disability claims, but did not adjudicate the Veteran's claim for recognition of the appellant as his dependent spouse for VA purposes and such decisions did not result in a combined rating of at least 30 percent. In a May 2013 rating decision, the RO adjudicated multiple disability claims, resulting in a combined disability rating in excess of 30 percent, effective March 27, 2012. Again, the RO did not adjudicate the Veteran's claim for recognition of the appellant as his dependent spouse for VA purposes. To the contrary, the RO informed the Veteran that he was eligible to receive additional allowance for his dependents, and that he would need to submit VA Form 21-686c, Declaration of Status of Dependents, before VA could pay additional benefits for his dependents. See June 2013 decision notification letter. As detailed above, the Veteran unfortunately died in June 2016. Thereafter, in October 2016, the appellant submitted VA Form 21-534EZ, Application for DIC, Death Pension, and/or Accrued Benefits, and provided her social security number. After careful review of the record, the Board finds that the Veteran’s March 1997 and June 1999 claims for disability benefits included formal claims for recognition of the appellant as his dependent spouse for VA purposes, as 38 C.F.R. § 3.156(d)(2) explicitly states that claimants may assert entitlement to ancillary benefits, such as dependency benefits, at the time the complete claim is filed and VVA will adjudicate as part of the claim any ancillary benefits that arise as a result of the adjudication decision. However, at the time of the Veteran’s death, the March 1997 and June 1999 claims for additional dependency benefits had not been adjudicated. As such, these claims for dependency benefits were pending at the time of the Veteran’s death and continue to be pending. While the RO in the January 2018 statement of the case appears to indicate that dependency claims expire after eight years, citing to the VA Procedures Manual (the M21-1), there is no provision in the relevant law or regulations that allows for the expiration of an unadjudicated dependency claim due to the passage of time. While 38 C.F.R. § 3.652 requires that individuals to whom benefits are being paid certify, when requested, that any or all of the eligibility factors which established entitlement to the benefit being paid continue to exist, the plain language of this regulation reflects that it does not apply to pending claims for benefits. As detailed above, the Veteran in the March 1997 and June 1999 claims provided all of the necessary information, except the appellant’s social security number, to establish the appellant as his dependent spouse for VA purposes, and such claims were pending and unadjudicated at the time of his death. In October 2016, the appellant informed VA of her social security number. See October 2016 VA Form 21-534EZ. As such, the record includes all of the necessary information to establish the appellant as the Veteran’s dependent spouse for VA purposes for the period prior to his death. Therefore, the appellant is recognized as the Veteran’s dependent spouse for VA purposes for the period prior to the Veteran’s death in June 2016. 38 U.S.C. § 5124; 38 C.F.R. §§ 3.204, 3.205, 3.206, 3.216. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Thomas, 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.