93 Decision Citation: BVA 93-02604 Y93 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 92-03 574 ) DATE ) ) ) THE ISSUES 1. Whether clear and unmistakable error was committed in an administrative decision in October 1967 that determined the appellant had not continuously cohabited with the veteran until his death. 2. Whether the appellant has submitted new and material evidence to become basically eligible for Department of Veterans Affairs (VA) death pension benefits. REPRESENTATION Appellant represented by: Barbara J. Cook, Attorney ATTORNEY FOR THE BOARD T. H. Tousley, Associate Counsel INTRODUCTION The veteran had active military service from February 1941 to December 1945 and from February 1951 to May 1958. He died in March 1967. The appellant, the wife of the veteran, submitted in April 1967 an application for VA death pension benefits. By an administrative decision in October 1967, the Department of Veterans Affairs (VA) regional office (RO) in Cleveland, Ohio, denied the appellant's claim on the basis that she had not met the requirements for continuous cohabitation with the veteran until his death. The appellant did not appeal this decision. This matter came before the Board of Veterans' Appeals (Board) on appeal from an October 1990 decision by the RO that the appellant had not submitted new and material evidence to reopen her claim for entitlement to VA death pension benefits. The appellant submitted a notice of disagreement in March 1991. The RO issued a statement of the case in January 1991. She testified at a hearing at the RO in April 1991. The hearing officer affirmed the denial by a written decision in May 1991. The RO issued a supplemental statement of the case in May 1991. She submitted a substantive appeal in July 1991 where she also requested to appear before a traveling section of the Board. She withdrew her request by a letter received in February 1992. The case was received and docketed at the Board in March 1992. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends the VA committed clear and unmistakable error in its Administrative Decision in October 1967 that determined the appellant was not a surviving spouse for the purposes of receiving VA death benefits. The appellant asserts that the decision was based on a paragraph of the VA's adjudication manual, M21-1, that created additional conditions for eligibility not required by law or regulation. She states that 38 C.F.R. § 3.53 (1991) does not require the surviving spouse to be without fault during the entire separation or that the surviving spouse not have a child by another man. She further asserts that to base the decision on an unpublished substantive rule of a manual was a clear and unmistakable legal error. She adds that this contention is supported by the holding of the Court of Veterans Appeals in Fugere v. Derwinski, 1 Vet.App. 103 (1990). The appellant also contends that she has submitted new and material evidence to reopen her claim. She states that the previous Administrative Decision was based on a finding that the separation between the veteran and herself was due to the fault of the appellant. She asserts she has submitted new evidence that the separation was due to the veteran's alcoholism and that the veteran condoned the birth of her out-of-wedlock child. She contends she has established a reasonable possibility of a change in the outcome in the case as required by Colvin v. Derwinski, 1 Vet.App. 171 (1991). She asserts that 38 C.F.R. § 3.55(d) (1991) now makes her eligible to receive VA death benefits. She avers the VA has failed to give appropriate weight to her statements as required by 38 C.F.R. § 3.53(b) (1991) and failed to consider the evidence of the veteran's alcoholism contained in his claims folder in violation of the holding of the Court in Littke v. Derwinski, 1 Vet.App. 90 (1991). DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (1992), following review and consideration of all evidence and material of record in the veteran's claims file, and for the following reasons and bases, it is the decision of the Board that the VA did not commit clear and unmistakable error in its Administrative Decision in October 1967, the appellant has submitted new and material evidence to reopen her claim, but that the evidence does not establish she is entitled to recognition as the veteran's surviving spouse for the purposes of VA death benefits. FINDINGS OF FACT 1. The RO denied the appellant's claim for VA death pension benefits by an Administrative Decision in October 1967. 2. The RO in its Administrative Decision in October 1967 applied the correct statutory and regulatory provisions to the relevant facts. 3. The appellant has submitted new evidence concerning her intent toward continuing the marital relationship during the separation and the possible condonation of the birth of her illegitimate child by the veteran so as to establish a reasonable possibility of a new outcome in the case. 4. The appellant separated from the veteran due to the veteran's misconduct, but the appellant abandoned the marital relationship and the appellant and the veteran did not reconcile before his death in March 1967. CONCLUSIONS OF LAW 1. Clear and unmistakable error was not committed by the VA in its Administrative Decision in October 1967. 38 C.F.R. § 3.105(a) (1991). 2. The appellant has submitted new and material evidence to reopen her claim. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1991). 3. The appellant is not the surviving spouse of the veteran for the purposes of receiving VA death pension benefits. 38 U.S.C.A. §§ 101(3), 1541 (West 1991); 38 C.F.R. §§ 3.50, 3.53 (1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The "surviving spouse" of a veteran who served during wartime may be eligible to receive VA death pension. 38 U.S.C.A. § 1541 (West 1991). "The term 'surviving spouse' means...a person of the opposite sex who was the spouse of the 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...." 38 U.S.C.A. § 101(3) (West 1991); 38 C.F.R. § 3.50 (1991). Concerning continuous cohabitation, 38 C.F.R. § 3.53 (1991) states: (a) General. 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 there was no separation due to the fault of the surviving spouse.... (b) Findings of Fact. The statement as to the reason for the separation will be accepted in the absence of contradictory information. If the evidence establishes that the separation was by mutual consent and that the parties lived apart for purposes of convenience, health, business or other reason which did not show an intent on the part of the surviving spouse to desert the veteran, the continuity of cohabitation will not be considered as having been broken.... I. Clear and Unmistakable Error Previous determinations by the originating agency (RO) concerning such issues as determining the eligibility of a claimant for VA benefits shall be accepted as correct in the absence of clear and unmistakable error. 38 C.F.R. § 3.105(a) (1991). "A clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts; it is not mere misinterpretation of facts." Oppenheimer v. Derwinski, 1 Vet.App. 370, 372 (1991). A mere difference of opinion with the decision is not a basis to reverse the decision. Thompson v. Derwinski, 1 Vet.App. 251, 253 (1991). The clear and unmistakable error must appear undebatably. Akins v. Derwinski, 1 Vet.App. 228, 231 (1991). The regulatory provisions concerning the requirement of continuous cohabitation have remained unchanged since the Administrative Decision was made in 1967. In that decision, the RO noted the regulatory provisions concerning the acceptance of a statement from the widow as to the reason for separation in the absence of contradictory information and that the finding of a continuous cohabitation will not be upset if the parties separated by mutual consent for reasons of convenience, etc. The RO further stated: Regardless of the reason for separation, the claimant is not without fault as to any period during which she cohabited with another man, except where such relationship was entered into in good faith with a reasonable basis for believing that her marriage was legally terminated. The birth of the child to the claimant as a result of her relations with another man will be accepted as proof of lack of continuous cohabitation within the meaning of the law, in the absence of evidence that the veteran condoned the claimant's conduct. The appellant asserts that this decision was based on a substantive rule found in the VA's adjudication manual. The M21-1 (manual) is "designed to provide procedures for adjudication of claims" to RO personnel. Furthermore, "[d]eviation from any of the prescribed procedures without prior authorization of the Chief Benefits Director is prohibited." M21-1, Adjudication Procedure, Compensation and Pension, Dependency and Indemnity Compensation, Accrued Amounts, Burial Allowance, Special Benefits, forward at iii (1989). Previous to a recent revision of M21-1, Paragraph 8.11 of Chapter 8 described the procedures for adjudicating the issue of continuous cohabitation. The quoted language from the Administrative Decision was taken almost verbatim from this paragraph with the exception that the manual provided that the evidence of a birth of a child as the result of relations with another man created a rebuttable presumption of a lack of continuous cohabitation. These two provisions are still in effect in the revised section, Paragraph 6.13 of Chapter 6 of Part III. The appellant argues that these two provisions of the M21-1 are substantive rules and are void because they were not promulgated in accordance with the procedures prescribed by the Administrative Procedures Act (APA) (5 U.S.C.A. §§ 552, 553) (West 1991). She cites Fugere v. Derwinski, 1 Vet.App. 103 (1991) in support of her contention. In that case, the Court of Veterans Appeals (Court) held that the VA's rescission of a rule contained in the M21-1 was invalid because the rule was a substantive rule that could only be rescinded by following the procedures of the APA. In regard to this contention, the VA has only been voluntarily bound by the APA since 1972 and statutorily bound since 1988. Id. at 107, 108. However, even if the VA prior to 1972 had made a policy of promulgating substantive rules by procedures similar to those of the APA, the APA covers only substantive rules. A substantive rule has the force of law and limits administrative action, whereas an interpretive rule merely clarifies or explains existing rules or statutes. Id. at 107. As stated previously, 38 U.S.C.A. § 101(3) (West 1991) requires continuous cohabitation until the veteran's death unless the separation was caused by the veteran's misconduct. The meaning of this statute is revealed by persuasive language found in the VA General Counsel's Opinion 3-80 (June 30, 1980), a copy which was also submitted by the appellant. The opinion states: The essence of the continuous cohabitation rule is that VA death benefits are to be payable to a surviving spouse to recompense in some manner, for the loss of financial support occasioned by the death of the veteran. The separation exception exists to protect surviving spouses, who, through no fault of their own, did not in fact live continuously with a veteran until death and whose conduct did not preclude a claim to marital rights. Since a separation is a continuing status (emphasis added), any evaluation of fault must include consideration of the ongoing and dynamic nature of such separation. Id. at 1. To direct that the RO consider a claimant not without fault if she cohabited with another man with knowledge that her marriage had not terminated states only the obvious. That is, she has evidenced an intent to desert the marriage and that their separation is no longer solely due to the misconduct of the veteran. This rule imposes no additional evidentiary burden and is consistent with the law. Concerning the rebuttable presumption in M21-1 regarding the birth of a child as the result of relations with another man, the opinion states: ...Such conduct could fairly be considered to manifest an intention to desert the marital relationship, and estrangement, and this is the interpretation presumptively placed upon it by the [Secretary]. M21-1, Paragraph 8.11(c)(4). ...It is certainly reasonable to consider a spouse evidencing an intent to abandon a marriage when two children are born to said spouse, as a result of relations outside of the marriage. To permit spouses who have shown disinclination to adhere to marital propriety to receive benefits would produce a statutorily unjustified result. Id. at 2. A rebuttable presumption is a "presumption that can be overturned upon the showing of sufficient proof....Once evidence tending to rebut the presumption is introduced, the force of the presumption is entirely dissipated...." Black's Law Dictionary, 1068 (5th ed. 1979). Thus, the rebuttable presumption created by the manual again merely states the obvious, that when someone goes so far as to bear a child out of wedlock, she has evidenced an intent to desert the marriage. The requirement that the claimant provide some proof to rebut this common-sense inference imposes no additional evidentiary burden and is consistent with the law. Thus, the RO based its decision on valid interpretive rules contained in the manual. The question remains whether the RO misapplied the law to the particular facts of this claim. The evidence before the RO revealed the veteran married the appellant in 1947. Service medical records indicate the veteran was medically discharged in 1958 for epilepsy, but that he also had a history of chronic alcoholism. It was reported in a discharge summary of a VA hospitalization of the veteran immediately following separation from service that he drank as much as a fifth of whisky a weekend. By the time of a second hospitalization by the VA from March 1959 to April 1959, it was noted he had been drinking rather heavily during the past several months. It was at this time in April 1959 the RO received from the appellant a request for apportionment of the veteran's disability compensation benefits because she and their children were separated from the veteran with contemplation of a divorce within the next six months. The request was initially denied but then granted in October 1959. Again it was noted in a report of a VA hospitalization in September 1961 that the veteran drank heavily. He reported at a VA psychiatric examination in April 1962 that he probably had been drinking to excess over the years and that he had been separated from his family for the past two years because of friction caused by his drinking. The veteran was hospitalized by the VA essentially from December 1965 until his death in March 1967. His disability compensation was still being apportioned to the appellant at his death. The appellant reported on her application for VA death pension benefits in April 1967 that she had three children by the veteran, the last being born in January 1958, and an illegitimate child. The RO in June 1967 requested that the appellant submit additional information concerning the circumstances surrounding her separation from the veteran. The appellant reported in June 1967 that: she had separated from the veteran in 1962 because he was a heavy drinker, they had no intention of living together although they had spoken about reconciliation, the veteran contributed money to support his children when he was working, she no longer had a relationship with the father of her illegitimate child, and the veteran and the appellant had never applied for a divorce or annulment. A statement was also submitted by another person to the effect that the veteran and the appellant had separated in 1962 and that the father of the illegitimate child no longer lived in the area. A birth certificate confirmed that a child was born to the appellant in November 1965 to a man other than the veteran. The appellant asserts that the RO failed to follow the requirement of 38 C.F.R. § 3.53(b) relating to acceptance of a claimant's statement as to the cause for separation. However, the RO did not question the appellant's contention that the separation was due to the veteran's alcoholism. Rather, the report of the birth of a child by another man during the separation revealed contradictory evidence that required further development. The confirmation of the child's birth by receipt of the birth certificate created a rebuttable presumption that there was a lack of continuous cohabitation. The RO applied the appropriate law and regulations to the relevant facts. Oppenheimer, 1 Vet.App. at 372. The RO determined that the presumption had not been rebutted. A mere difference of opinion with this determination is not a basis to reverse the decision. Thompson, 1 Vet.App. at 253. The Board determines there is no evidence of an undebatably clear and unmistakable error in the RO's determination. Akins, 1 Vet.App. at 231. II. New and Material Evidence Unless clear and unmistakable error is alleged, 38 C.F.R. § 3.105(a) (1991); Thompson, 1 Vet.App. at 253 (1991); a determination on a claim by the RO becomes final if the claimant does not perfect a timely appeal. 38 C.F.R. § 3.160(d) (1991). Thereafter, the claimant must submit evidence that is new and material before a claim may be reopened. 38 U.S.C.A. § 5108 (West 1991); Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). New and material evidence is evidence that is not merely cumulative, but which establishes "a reasonable possibility that the new evidence, when viewed in context of all the evidence, both new and old, would change the outcome." Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). The evidence considered by the RO in 1967 has been previously discussed. The appellant submitted an affidavit and sworn testimony in an attempt to reopen her claim. This evidence sheds additional light as to her intent towards continuing her marital relationship during the separation and as to the veteran's possible condonation of the birth of her illegitimate son. The Board determines this is new and material evidence so as to reopen her claim because it provides a reasonable possibility of a change in the outcome of the case. Id. The previously quoted General Counsel's Opinion 3-80 also considered a fact situation where a child was born as a result of relations with another man. The question to be addressed in this type of situation was succinctly stated. The question thus remaining for adjudication is whether the evidence as a whole supports a finding that the claimant evidenced the intent to break the marital bonds during the veteran's absence (a determination in which the births outside of the marriage should be given great weight), and whether the veteran condoned the activities in question (which in this case seems highly unlikely). Condonation is a traditional legal defense to an action for divorce being asserted on a ground such as adultery. Condonation means "[t]he conditional remission or forgiveness by means of continuance or resumption of marital cohabitation, by one of the married parties, of a known matrimonial offense committed by the other, that would constitute a cause of divorce...." Black's Law Dictionary, 268-269 (5th ed. 1979). To summarize, the law maintains that once the estranged wife gives birth to a child as the result of relations with another man, she is no longer without fault in the separation. Thereafter, continuous cohabitation will not be shown unless the veteran has condoned the birth by reconciling with the wife and in effect, resuming their marital relationship. The appellant testified at the RO in April 1991 that she separated from the veteran because she feared he might harm their children because of his heavy drinking which also prevented them from getting back together. She stated she never lived with the father of her illegitimate son. She testified that while she was carrying her illegitimate child, the veteran still visited her every 2 or 3 days. She added that he still visited her after the birth of the illegitimate child, but not as often because he was in and out of the hospital until his death. She stated that she might have gotten back together with the veteran if he had stopped drinking. The appellant stated in an affidavit received in July 1991 that she met the father of her future illegitimate child at a party, she did not date him frequently, she terminated their relationship prior to the birth of her child, and that her relationship with the veteran remained the same as it had before. Lay testimony is evidence that can provide the necessary proof to establish a claim. Cartright v. Derwinski, 2 Vet.App. 24, 25 (1991). The Board must assess the credibility and weight of lay testimony. Ashmore v. Derwinski, 1 Vet.App. 580, 582 (1991). The evidence as a whole establishes the appellant separated from the veteran, initially in 1958 and permanently by 1962, due to his misconduct. Despite the evidence of a short relationship with the father of her illegitimate child, the birth of the child evidenced her intent to abandon her marital relationship with the veteran. The Board does not dispute her testimony and affidavit as to the reason for separation or as to the short duration of her adulterous relationship. However, even giving full weight to her testimony and affidavit as to the veteran's actions during her pregnancy and after the birth of her illegitimate child, the evidence does not show he condoned the birth. At most, the evidence indicates he saw his wife and children every few days and did not condemn his wife for the birth. There is no evidence that they resumed a marital relationship by the veteran moving back into the house or that he condoned the birth by raising the child along with the rest of his family. The Board recognizes that the child was born only a very short time before he was hospitalized by the VA. The veteran and the appellant may have spoken of reconciliation, but as clearly shown by her statement in 1967, they had no intention of getting back together. The Board finds that the preponderance of the evidence is against establishing the claimant as a surviving spouse of the veteran for the purposes of VA death benefits. The appellant also contends that the VA has ignored a change in the law reflected in 38 C.F.R. § 3.55(d) (1991) that is favorable to the appellant. However, this provision and 38 C.F.R. § 3.50(b)(2) (1991) refer to the conduct of a claimant after she has become widowed. Thus, this regulation is not applicable to the issue concerning the appellant's conduct during her separation from the veteran. ORDER The appellant is not entitled to recognition as the surviving spouse of the veteran for the purposes of VA death pension benefits. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 WARREN W. RICE, JR. ROBERT D. PHILIPP FRANCIS F. TALBOT (CONTINUED ON NEXT PAGE) NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.