Citation Nr: 21007068 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 16-62 977 DATE: February 8, 2021 ORDER The petition to reopen the matter of whether the appellant may be recognized as the Veteran's surviving spouse for Department of Veterans Affairs (VA) Dependency and Indemnity Compensation (DIC) benefit purposes is granted. Entitlement to recognition as the Veteran’s surviving spouse for purposes of eligibility for Department of Veterans Affairs (VA) death benefits is granted. FINDINGS OF FACT 1. A February 2004 rating decision denied an application to reopen a claim that the appellant be recognized as the Veteran’s surviving spouse for VA DIC benefit purposes. 2. The appellant filed a notice of disagreement to the February 2004 but did not perfect an appeal after an April 2006 statement of the case. 3. The appellant’s testimony and evidence are new and relate to misconduct of the Veteran resulting in separation and evidence she was not divorced at the time of the Veteran’s death. 4. The appellant was married to the Veteran in November 1987, was separated from the Veteran from by reason of his misconduct and did not divorce the Veteran prior to his death in September 1998. 5. The appellant’ marriage in November 1995 was void by operation of her continuing marriage to the Veteran; this marriage ended by death of the appellant’s spouse in March 1998. 6. The appellant remarried in June 2013 and her spouse died approximately 6 weeks later. CONCLUSIONS OF LAW 1. A February 2004 rating decision, which denied an application to reopen the claim for DIC based on a determination that the appellant could not be recognized as the Veteran’s surviving spouse for VA DIC benefit purposes is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence to reopen the claim of whether the appellant may be recognized as the Veteran’s surviving spouse for DIC benefits purposes has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for recognition as the Veteran’s surviving spouse are met. 38 U.S.C. §§ 1102, 1304, 1541; 38 C.F.R. § 3.54. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1968 to December 1970. The Veteran died in September 1998. The appellant was married to the Veteran at the time of his death. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 1. The petition to reopen the matter of whether the appellant may be recognized as the Veteran’s surviving spouse for DIC benefit purposes. A rating decision is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error where a notice of disagreement or material evidence was not received within one year of notification of the decision. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156(b), 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 decision makers. 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. There is a low threshold to raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010); Evans v. Brown, 9 Vet. App. 273 (1996); 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). When a veteran dies, his or her “surviving spouse” may be eligible for VA death benefits, to include DIC benefits, death compensation, and death pension. See 38 U.S.C. §§ 1121, 1310, 1541; 38 C.F.R. § 3.50(a). A “surviving spouse” for VA purposes is defined as 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 fault of the spouse; and (2) has not remarried or has not since the death of the veteran lived with another person and held himself/herself out openly to the public to be the spouse of such other person. 38 C.F.R. § 3.50(b). A February 2004 rating decision determined that the appellant could not be recognized as the Veteran’s surviving spouse for VA DIC benefit purposes. The appellant submitted a timely notice of disagreement but did not perfect an appeal following an April 2006 statement of the case. Additional evidence pertaining to the issue of whether the appellant may be recognized as the Veteran’s surviving spouse for DIC benefits purposes was not received by VA or constructively in VA possession within one year of written notice to the Veteran of the February 2004 rating decision. The February 2004 rating decision is final. 38 C.F.R. § 3.104. The additional evidence received since the February 2004 rating decision includes testimony regarding abuse by the Veteran that resulted in her separation. The appellant also provided statements from the Veteran’s children that he was abusive and violent. The appellant also provided an affidavit from a county clerk that she was not divorced from the Veteran at the time of his death. See August 2020 Affidavit. The appellant’s contentions and corroborating evidence were not previously of record and pertain to the requirements for recognition as a surviving spouse. The Board finds that the appellant’s testimony and corroborating statements from the Veteran’s children are new, relate to whether the appellant did not cohabitate with the Veteran until his death due to his misconduct, and raises a reasonable possibility of substantiating the claim for recognition of the appellant as the Veteran’s surviving spouse for VA DIC benefit purposes. As new and material evidence has been received, the claim of recognition of the appellant as the Veteran’s surviving spouse for VA DIC benefit purposes is reopened. 38 C.F.R. § 3.156(a). 2. Entitlement to recognition as the Veteran's surviving spouse for purposes of eligibility for Department of Veterans Affairs (VA) death benefits is granted. The appellant has asserted that she is entitled to DIC as the surviving spouse of the Veteran. The appellant and Veteran were married in November 1987. The record shows the appellant also married another individual in November 1995 who died in March 1998. The Veteran died in September 1998. VA death benefits may be paid to a surviving spouse who was married to the Veteran: (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. Although remarriage is generally a bar to eligibility for status as a surviving spouse, there are exceptions to that general rule. 38 C.F.R. §§ 3.55 (a)(1)-(10); see also 38 U.S.C. §§ 103 (d), 1311(e). There are ten exceptions to the general rule that remarriage is a bar to eligibility for status as a surviving spouse. 38 U.S.C. §§ 103 (d), 1311(e); 38 C.F.R. § 3.55. Under 38 C.F.R. § 3.55 (a)(1), the remarriage of a surviving spouse shall not bar the furnishing of benefits to such surviving spouse if the marriage: (i) was void, or (ii) has been annulled by a court having basic authority to render annulment decrees, unless it is determined by the Department of Veterans Affairs that the annulment was obtained through fraud by either party or by collusion. This exception applies because the appellant’s remarriage in November 1995 was void due to her prior marriage to the Veteran, which did not cease until his death in September 1998. Here, the appellant testified the Veteran deceived her by claiming her November 1987 marriage was not valid. As noted above, the Veteran and the appellant did not divorce and the Board finds her subsequent marriage in November 1995, for VA purposes, was void under Virginia law. See VA Code Ann. § 20-38.1.1 (2020) (prohibiting a marriage entered into prior to the dissolution of an earlier marriage of one of the parties). The appellant also remarried after October 1, 1998. The record shows the appellant remarried in June 2013 and her spouse died six weeks later. See November 2015 Form 21-0956. Under 38 C.F.R. § 3.55 (3), on or after October 1, 1998, remarriage of a surviving spouse terminated by death, divorce, or annulment, will not bar the furnishing of dependency and indemnity compensation, unless the Secretary determines that the divorce or annulment was secured through fraud or collusion. As such, this exception applies to the second marriage following marriage to the Veteran. In sum, the appellant has demonstrated she was separated from the Veteran due to misconduct on the part of the Veteran and that she remained married to the Veteran until his death. The Board finds her marriage prior to October 1, 1998 was void due to her continuing marriage to the Veteran, and her marriage after October 1, 1998 ended through death of her spouse. 38 U.S.C. §§ 103 (d), 1311(e); 38 C.F.R. § 3.55 (a)(1), (3). The appellant satisfies the specific legal requirements for recognition as the Veteran’s “surviving spouse” for the purposes of entitlement to VA death benefits under 38 C.F.R. § 3.55 (a) and recognition of the appellant as the Veteran’s surviving spouse is granted. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Trickey 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.