Citation Nr: 21013920 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 15-36 510 DATE: March 10, 2021 ORDER Entitlement to recognition of the appellant as the surviving spouse of the Veteran for the purpose of entitlement to Dependency and Indemnity Compensation (DIC) benefits for the case of the Veteran’s death is denied. Entitlement to service connection for the cause of the Veteran’s death for the purpose of receiving Dependency and Indemnity Compensation (DIC) is denied. Entitlement to accrued benefits is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against a finding that the appellant had a valid marriage to the Veteran at the time of his death. 2. The appellant is not recognized as a surviving spouse of the Veteran for purposes of receiving death pension and accrued benefits. CONCLUSIONS OF LAW 1. The criteria for entitlement to recognition of the appellant as the surviving spouse of the Veteran for the purpose of entitlement to Dependency and Indemnity Compensation (DIC) benefits for the case of the Veteran's death have not been met. 38 U.S.C. §§ 103, 1102, 1304, 1310, 1311, 1541; 38 C.F.R. §§ 3.1(j), 3.50, 3.52, 3.53. 2. The criteria for entitlement to service connection for the cause of the Veteran's death for the purpose of receiving Dependency and Indemnity Compensation (DIC) have not been met. 38 U.S.C. §§ 1110, 1310; 38 C.F.R. §§ 3.50, 3.303, 3.307, 3.309, 3.312. 3. The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. § 5121; 38 C.F.R. §§ 3.50, 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from February 1970 to June 1971; and passed away in November 2007. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in January 2019 and June 2020, where they were remanded for additional development. The Board notes that there was substantial compliance with its June 2020 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). As an initial matter, the Board notes that the appellant submitted a VA Form 21-22a, appointing a private attorney to serve as her representative. The attorney is not accredited to represent claimants before VA; however, the parties indicated that the representation would be provided under 38 C.F.R. § 14.630, which is a special power of attorney allowing for one-time representation by an individual who is not accredited by VA as required in 38 C.F.R. § 14.629. The Board further notes that in April 2008, VA recognized DGL as the Veteran’s surviving spouse. In this regard, the Board notes that because a grant of the appellant’s claim for recognition as the Veteran’s surviving spouse would result in the payment of a lesser benefit to DGL, this case qualifies as a “contested claim.” See 38 C.F.R. § 20.3(p) (defining contested claim). A claim for recognition as a surviving spouse when another individual has been designated such is a “contested claim” and is subject to the provisions of 38 U.S.C. § 7105A and the special procedural regulations as set forth in 38 C.F.R. §§ 19.100, 19.101, 19.102; see also 38 C.F.R. §§ 20.500-20.504, 20.713. In the case of contested claims, all interested parties are to be specifically notified of the action taken by the Agency of Original Jurisdiction (AOJ) in a simultaneously contested claim and of the right and time limit for initiating an appeal, as well as both hearing and representation rights. 38 C.F.R. § 19.100. Upon the filing of a Notice of Disagreement (NOD) in a simultaneously contested claim, all interested parties are to be furnished with a copy of the statement of the case (SOC). 38 C.F.R. § 19.101. Additionally, when a substantive appeal is filed in a simultaneously contested claim, the content of the substantive appeal will be furnished to the other contesting parties to the extent that it contains information which could directly affect the payment or potential payment of the benefit which is the subject of the contested claim. 38 C.F.R. § 19.102. Here, the Board notes that all special procedural requirements noted above related to the appellant’s contested claim have been properly completed. 1. Entitlement to recognition of the appellant as the surviving spouse of the Veteran for the purpose of entitlement to Dependency and Indemnity Compensation (DIC) benefits for the case of the Veteran's death. 2. Entitlement to service connection for the cause of the Veteran’s death for the purpose of receiving Dependency and Indemnity Compensation (DIC). 3. Entitlement to accrued benefits. The appellant asserts that she should be recognized as the Veteran’s surviving spouse for VA purposes as she was his legal spouse at the time of his death. When a Veteran dies, his or her surviving spouse may be eligible for VA death benefits, to include Disability and Indemnity Compensation (DIC) benefits, death compensation, and death pension. See 38 U.S.C. § § 1102, 1121, 1141, 1304, 1310, 1541; 38 C.F.R. § 3.50(a). Consequently, “surviving spouse” status is a threshold requirement for VA death benefits. For a person to establish recognition as a surviving spouse of a Veteran, there must be evidence of a valid marriage to the Veteran under the laws of the appropriate jurisdiction. See Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). Except as provided in 38 C.F.R. § 3.52 , “surviving spouse” means a person whose marriage to the Veteran meets the requirements of § 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 § 3.55, has not remarried or has not since the death of the Veteran and after September 19, 1962, lived with another person of the opposite sex and held himself or herself out openly to the public to be the spouse of such other person. 38 C.F.R. § 3.50(b). VA will accept, for the purpose of determining entitlement to benefits under laws administered by VA, the statement of a claimant as proof of marriage or dissolution of a marriage, provided that the statement contains the date and place of the event and the full name and relationship of the other person to the claimant. 38 U.S.C. § 5124(a), (b); 38 C.F.R. § 3.204(a)(1). However, VA shall require the types of evidence indicated in 38 C.F.R. § § 3.205 through 3.211 where the claimant’s statement conflicts with other evidence of record, or where there is a reasonable indication, in the claimant’s statement or otherwise, of fraud or misrepresentation of the relationship in question. 38 C.F.R. § 3.204(a)(2). In support of her claim, the appellant submitted her marriage certificate to the Veteran dated June 14, 1982, to which she contends there was a separation due to the misconduct of the Veteran. She also submitted documentation from the Social Security Administration showing that she is in receipt of benefits as the Veteran’s widow. She also indicated that she sought a divorce from the Veteran in May 2008 and was granted such in July 2008, after the Veteran’s death, with submission of a divorce decree dated July 25, 2008. Therefore, she asserts that the marriage between the Veteran and DGL was not valid due to legal impediment. The Board finds the appellant’s contention that she was legally married to the Veteran at the time of his death conflicts with other evidence of record; and therefore, evidence indicated in 38 C.F.R. § § 3.205 through 3.211 is required. The Veteran died in November 2007, with the death certificate listing DGL as the Veteran’s surviving spouse. During that same time, DGL submitted a marriage license between the Veteran and herself, which noted they were married in October 1994, with the Veteran’s last marriage being dissolved in November 1980. See Death Certificate, November 2007. A review of the Veteran’s VA treatment records indicated that the Veteran had been married three times. His first marriage to VQ was in April 1969 , ending in divorce in August 1971; his second marriage to PR was in August 1977, and they divorced in December 1980; and his last marriage to DGL was in October 1994 until his death. See November 1979 VA 21-526; see also March 1982 VA 21-68; see also November 2007 Death Certificate. Regarding the appellant, a review of the claims file indicates that she has been married four times. Her first marriage to RMW was in June 1968 and was annulled in Texas in early 1969; her second marriage to RAA was in August 1970 and they divorced in Arizona in 1976; her third marriage to FDT was in 1978 and they divorced in Wyoming in 1981; and her last marriage to the Veteran was in June 1982 and they divorced in July 2008. See January 2014 VA 21-534; see also June 2016 Divorce Decrees. Due to the conflicting evidence of record and the inability to locate the appellant’s divorce decree from the Veteran (to which she previously noted she submitted to VA), in July 2015, the RO sent a notification letter to the appellant informing her of the previously provided inconsistent marital histories for herself and the Veteran; and thus, requested that appellant provide the following: (1) a complete marital history for herself and the Veteran, (2) certified copies of the public record of the termination for each of her marriages, and (3) statements from her and two other persons regarding the dates, places, and circumstances of the Veteran and her not continuously living together from the date of their marriage until the date of the Veteran’s death. See Notification Letter, July 2015. In response to this request, and in support of the validity to her marriage to the Veteran, in June 2016, the appellant submitted the divorce decrees for RMW (dated July 1970 from Texas) and for RAA (dated November 1977 from Arizona). However, the appellant did not submit a divorce decree for FDT, nor for the Veteran. In June 2020, the Board remanded the appellant’s claims specifically to obtain from the appellant a copy of her divorce decree from her previous marriage to FDT in order to verify that she had a valid marriage with the Veteran at the time of his death, and thus, verify that she is, in fact, the Veteran’s surviving spouse. Additionally, she was asked to provide statements from herself and two others regarding the dates and places she and the Veteran lived during any period of separation. See BVA Decision, June 2020. The Board notes that a review of the record reflects the appellant provided such statements in August 2020, as well as, the divorce decree from the Veteran; however, to this date, the appellant has not provided the requested and necessary copy of her divorce decree from FDT in order to prove validity of her marriage to the Veteran. Therefore, while the Board acknowledges that there is a marriage certificate noting marriage between the Veteran and the appellant dated in June 1982, and a divorce decree noting dissolution of their marriage dated July 2008, after the Veteran’s death, the Board finds this information, alone, when weighted against the totality and conflicted evidence record, is not sufficient to render that the appellant and the Veteran held a valid, legal marriage in June 1982. See 38 C.F.R. § 3.205(b). There is no objective evidence showing dissolution of the appellant’s prior marriage to FDT in order to substantiate validity of her marriage to the Veteran at that time, and without such evidence of divorce, the Board finds that the appellant has put herself in the same legality issue that she asserts is currently impeding the validity of DGL as the Veteran’s lawful surviving spouse (noting that the appellant contends that the marriage between DGL and the Veteran is invalid due to legal impediment, as the Veteran was legally married to the appellant at the time). Additionally, the Board notes that the RO and the Board has requested this necessary and required information several times over the span of 5 years in order to assist the appellant in substantiating her claim; however, the record reflects that the appellant has unambiguously chosen not to provide such information, as she has adequately and appropriately responded to all other requests for information except the request for issuance of divorce decree between her and FDT. Consequently, the Board finds that any further efforts to obtain such information would be deemed unnecessary. See Wood v. Derwinski, 1 Vet. App. 190, 193 (noting the duty to assist is a two-way street, and the appellant cannot wait passively in those situations where her assistance to VA is necessary). Therefore, based on the above, the Board is not persuaded that a valid marriage existed between the appellant and the Veteran at the time of his death. Furthermore, for argument sake, the Board notes that even if the appellant was deemed to have a valid marriage at the time of the Veteran’s death, the evidence of record reflects that they did not continuously live together from the time of marriage until the date of death; and even though the appellant submitted evidence that the separation was due to the misconduct of the Veteran, she has not provided any evidence showing that she has not remarried or has not since the death of the Veteran lived with another person of the opposite sex and held himself or herself out openly to the public to be the spouse of such other person to satisfy the other elements of a “surviving spouse” pursuant to 38 C.F.R. § 3.50. Therefore, as the probative evidence of record, or lack thereof, is against a finding that the appellant’s marriage to the Veteran was valid, the Board finds that the appellant does not meet the criteria for a surviving spouse for purposes of DIC benefits. Accordingly, entitlement to recognition of the appellant as the surviving spouse of the Veteran for the purpose of entitlement to Dependency and Indemnity Compensation (DIC) benefits for the case of the Veteran’s death is not warranted; and the claim is denied. As the Board finds that the appellant is not recognized as a surviving spouse of the Veteran for purposes of DIC, the Board further finds that the claims for entitlement to service connection for the cause of the Veteran’s death for the purpose of receiving DIC and entitlement to accrued benefits are also denied as a matter of law. (Continued on the next page) The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § 5107 and 38 C.F.R. § 3.102, but does not find the evidence is of such approximate balance to warrant its application. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Hodges, Associate 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.