BVA9408726
DOCKET NO.  92-03 574     )       DATE
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THE ISSUES

1.  Whether the appellant has submitted new and material evidence to
become basically eligible for Department of Veterans Affairs (VA)
death pension benefits.

2.  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.

REPRESENTATION

Appellant represented by: Michael J. Mooney, Attorney

WITNESS AT HEARING ON APPEAL

The appellant

ATTORNEY FOR THE BOARD

Thomas 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.

In February 1993, the Board of Veterans' Appeals (Board) denied the
appellant's claim for recognition as the surviving spouse of the
veteran for the purpose of receiving VA death pension.  In September
1993, the United States Court of Veterans Appeals (Court) granted a
joint motion for remand and vacated the Board's decision.

In April 1994, in accordance with Thurber v. Brown, 5 Vet.App. 119
(1993), the appellant's attorney was provided a copy of General
Counsel's Precedent Opinion 9-94, dated March 25, 1994, and pertinent
provisions of the M21-1 Manual, and allowed 60 days in which to
comment.  The response of the appellant's attorney at the end of
April 1994 has been included in the veteran's claims folder.

CONTENTIONS OF APPELLANT ON APPEAL

The appellant contends that she 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 that she 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 that she has established a
reasonable possibility of a change in the outcome in the case as
required in Colvin v. Derwinski, 1 Vet.App. 171 (1991).

The appellant asserts that 38 C.F.R. § 3.55(d) (1993) now makes her
eligible to receive VA death benefits.  She avers that the VA has
failed to give appropriate weight to her statements as required by 38
C.F.R. § 3.53(b) (1993) and failed to consider the evidence of the
veteran's alcoholism contained in his claims folder in violation of
the Court in Littke v. Derwinski, 1 Vet.App. 90 (1991).

The appellant further contends that 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
purpose of receiving VA death pension 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 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 in Fugere v. Derwinski, 1
Vet.App. 103 (1990).

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A. § 7104
(West 1991), has reviewed and considered all of the evidence and
material of record in the veteran's claims file.  The Board has
determined that only those items listed in the "Certified List"
attached to this decision and incorporated by reference herein are
relevant evidence in the consideration of the veteran's claim.  Based
on its review of the relevant evidence in this matter, and for the
following reasons and bases, it is the decision of the Board that the
appellant has not submitted new and material evidence to reopen her
claim, but that she is entitled to recognition as the surviving
spouse of the veteran for the purpose of receiving VA death benefits
based on her new claim submitted in August 1990.  The Board also
determines that the RO did not commit clear and unmistakable error in
its Administrative Decision in October 1967.

FINDINGS OF FACT

1.  The RO denied the appellant's claim for VA death pension benefits
by an Administrative Decision in October 1967 on the basis that there
had not been continuous cohabitation between the veteran and the
appellant until the veteran's death based on the evidence of the
birth of a child to the appellant during her separation from the
veteran as the result of relations with another man.

2.  The appellant did not timely appeal the denial of her claim by
the RO in October 1967.

3.  The evidence submitted by the appellant since the RO's October
1967 decision is cumulative, and therefore, does not provide a
reasonable possibility of a change in outcome of the decision.

4.  The appellant's claim submitted in August 1990 constitutes a new
claim for recognition as the surviving spouse of the veteran, because
during the course of her current appeal, the U.S. Court of Veterans
Appeals invalidated the provision of 38 C.F.R. § 3.53(a) upon which
the RO had previously denied her claim.

5.  At the time of the appellant's separation from the veteran, the
appellant was not at fault.

6.  The appellant's separation from the veteran was due to the
veteran's misconduct.

7.  The RO, in its Administrative Decision in October 1967, applied
the correct statutory and regulatory provisions then in effect to the
relevant facts.

CONCLUSIONS OF LAW

1.  New and material evidence has not been received to reopen the
appellant's April 1967 claim denied by the RO's Administrative
Decision in October 1967.  38 U.S.C.A. §§ 5107, 5108 (West 1991); 38
C.F.R. § 3.156 (1993).

2.  Based on the submission of a new claim in August 1990, the
appellant is the surviving spouse of the veteran for the purpose of
receiving VA death pension benefits.  38 U.S.C.A. §§ 101(3), 1541,
5107 (West 1991); 38 C.F.R. §§ 3.50, 3.53 (1993).

3.  Clear and unmistakable error was not committed by the RO in its
Administrative Decision in October 1967.  38 C.F.R. § 3.105(a)
(1993).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Evidence

The appellant married the veteran in November 1958.  The veteran died
in March 1967.  The appellant submitted a claim for VA death benefits
in April 1967.

The evidence before the RO at that time revealed that the veteran was
medically discharged in 1958 for epilepsy, but that he also had a
history of chronic alcoholism.  In a discharge summary of a VA
hospitalization of the veteran immediately following separation from
service, it was reported that he drank as much as a fifth of whiskey
a weekend.  By the time of the second hospitalization by the VA from
March 1959 to April 1959, it was noted that he had been drinking
rather heavily during the past several months.

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.
He was hospitalized by the VA essentially from December 1965 until
his death in March 1967.  Initially, he was hospitalized for
treatment of pulmonary tuberculosis, but carcinoma of the stomach was
discovered in 1966 and caused his death.  The evidence indicates that
he lived with his sister during his separation from the appellant.
His sister filed the application for the payment of VA burial
benefits.  His disability compensation was still being apportioned to
the appellant at his death.

The appellant reported on her application for VA death benefits in
April 1967 that the veteran was the father of three of her children
born prior to their separation in 1959.  She also reported the birth
of an illegitimate child.  In June 1967, the RO requested that she
submit information concerning the circumstances surrounding her
separation from the veteran.

The appellant reported the following information in June 1967:  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, he contributed money to support his
children when he was working, she no longer had a relationship with
the father of her illegitimate child, and she and the veteran had
never filed for a divorce or an annulment.  She submitted a statement
from a person to the effect that the veteran and the appellant had
separated in 1962 and the father of the illegitimate child no longer
lived in the area.  The RO reviewed a birth certificate that
confirmed that a child was born to the appellant in November 1965 to
a man other than the veteran.  In a letter dated in September 1967,
the appellant reported that the VA hospital did not inform her of the
veteran's death.

By an Administrative Decision in October 1967, the RO denied the
appellant's claim for VA death pension on the basis that she did not
continuously cohabit with the veteran until his death.  The appellant
did not appeal this decision.

In 1983, the appellant submitted another application for VA death
benefits.  The RO informed her that since she did not appeal the
previous denial of her claim, she was required to submit new and
material evidence to reopen her claim.  There is no indication that
the RO advised her of her right to appeal the RO's action.
Principles of administrative regularity, however, dictate a
presumption that government officials have properly discharged their
official duties.  See Saylock v. Derwinski, 3 Vet.App. 394, 395
(1992).

In August 1990, the appellant submitted a statement.  She stated that
she and the veteran had been separated only 9 months to a year prior
to his death.  She added that until he was hospitalized, he came by
the house to see his family about every other day.  She related that
she prepared his meals, but sometimes he was unable to eat due to his
drinking.  She stated that his drinking scared her even though he
always contributed money to support the children.

In April 1991, the appellant testified at the RO that she separated
from the veteran because she feared that he might harm their children
because of his heavy drinking which also prevented them from getting
back together.  She stated that 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 her last
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.

In July 1991, the appellant stated in an affidavit that she had met
the father of her future illegitimate child at a party, she had not
dated him frequently, she had terminated their relationship prior to
the birth of her child, and her relationship with the veteran had
remained the same as before.

Defining the Status of a "Surviving Spouse"

The pertinent statutes and regulations have remained essentially
unchanged since 1967.

A "surviving spouse" of a veteran who served during wartime may be
eligible to receive VA death pension benefits.  38 U.S.C.A. § 1541
(West 1991).  The law states:

The term "surviving spouse" means...a person who
was the spouse of a 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
or (in cases not involving remarriage) has not
since the death of the veteran...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.A. § 101(3) (West 1991).

Title 38, U.S.C.A. § 101(3) and 38 C.F.R.
§ 3.50(b)(1) set forth a two-part test to
determine whether a spouse will be deemed to
have continuously cohabited with the veteran
when there has been a separation.  The spouse
must not only be free of fault at the time of
the separation, but it must be found that the
separation "was due to the misconduct of, or
procured by, the veteran."

Gregory v. Brown, 5 Vet.App. 108, 112 (1993).  Fault, or the absence
of fault, is to be determined based on an analysis of conduct at the
time of separation.  Id.

Concerning the requirement of continuous cohabitation, 38 C.F.R.
§ 3.53 (1993) 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 of the
surviving spouse 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.

The Court held as unlawful the first sentence of 38 C.F.R. § 3.53(a),
which required that the surviving spouse be without fault during the
entire time of the separation, as exceeding the authority of the
statute.  Gregory, 5 Vet.App. at 112.

The Board notes that the appellant has the burden to establish, by
the preponderance of the evidence, her status as a claimant by
proving that she continuously cohabited with the veteran until his
death.  Aguilar v. Derwinski, 2 Vet.App. 21, 23 (1991).

I.  New and Material Evidence

In his motion to the Court for a joint remand, the attorney for the
appellant requested that the Board remand the case to obtain certain
lay statements submitted in support of the appellant's claim.  Based
on the review of the documents in the veteran's claims folder, it
appears that the appellant's attorney was referring to the
appellant's notice of disagreement and three accompanying lay
statements described in the statement of the case.  These documents
are not a part of the veteran's claims folder.  However, the Board
determines that a remand is unnecessary in the light of the Board's
favorable decision.

In the absence of clear and unmistakable error, the law provides that
a determination by the RO on a claim becomes final if the claimant
does not perfect a timely appeal within one year after the date of
notice of the disallowance.  38 U.S.C.A. § 7105(c) (West 1991); 38
C.F.R. §§ 20.302, 20.1103 (1993).  Thereafter, the claimant must also
submit new and material evidence to reopen a claim.  38 U.S.C.A.
§ 5108 (West 1991).  New evidence, submitted to reopen a claim, will
be presumed credible solely for the purpose of determining whether
the claim has been reopened.  Justus v. Principi, 3 Vet.App. 510, 513
(1993).  Furthermore:

"New" evidence is that which is not merely
cumulative of other evidence of record.
"Material" evidence is that which is relevant to
and probative of the issue at hand and
which...must be of sufficient weight or
significance (assuming its credibility) that
there is a reasonable possibility that the new
evidence, when viewed in context of all the
evidence, both new and old, would change the
outcome.

Cox v. Brown, 5 Vet.App. 95, 98 (1993).

The evidence received since the denial of the appellant's claim in
1967 essentially shows that the appellant remained separated from the
veteran until his death due to his heavy drinking.  As such, it is
cumulative of the evidence previously before the RO and cannot be
considered new and material evidence.

However, the RO, in its October 1967 Administrative Decision, denied
the appellant's claim on the basis of the provision of 38 C.F.R.
§ 3.53(a) held to be unlawful by the Court.  The RO 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 Court has held that a claim was reopened when the RO failed to
apply a pertinent regulation in its original rating action.  Akins v.
Derwinski, 1 Vet.App. 228, 230 (1991).  The Court has also held that
when a change in the law creates a new basis for entitlement to
benefits, an applicant's claim under such liberalizing law or
regulation is a separate and distinct claim from the one previously
considered.  Spencer v. Brown, 4 Vet.App. 283, 288 (1993).  Thus, in
the latter case, the rules regarding the finality of prior unappealed
decisions do not apply.  We determine that the instant case is most
analogous to the latter situation in that the invalidation of the
first sentence of 38 C.F.R. § 3.53(a) by the Court creates a new
basis for the appellant's entitlement to recognition by the VA as the
surviving spouse of the veteran.

Since the Court eliminated the requirement that the appellant be
without fault throughout the time of separation from the veteran, the
information concerning the appellant's conduct during the separation
only is relevant to the extent that it provides evidence as to the
cause of their separation.  The appellant's explanation regarding the
cause of their separation has not been contradicted by her statements
or by other evidence, and thus must be accepted by the Board.  The
evidence as a whole establishes that the appellant separated from the
veteran, initially in 1958, and permanently by 1962, due to his
chronic alcoholism which constituted a form of misconduct.  In
addition, there has been no evidence that she was at fault for their
separation.  She has not remarried since the veteran's death.  Hence,
the Board determines that entitlement to recognition of the appellant
as the surviving spouse of the veteran has been established based on
a new claim submitted in August 1990.

II.  Clear and Unmistakable Error

A previous determination by the RO shall be accepted as correct in
the absence of clear and unmistakable error.  38 C.F.R. § 3.105(a)
(1992).  There is a presumption of validity to otherwise final
decisions.  Fugo v. Brown, 6 Vet.App. 40, 44 (1993).

To constitute clear and unmistakable error, "[e]ither the correct
facts, as they were known at the time, were not before the
adjudicator or the statutory or regulatory provisions extant at the
time were incorrectly applied.  The claimant, in short, must assert
more than a disagreement as to how the facts were weighed and
evaluated."  Moreover, "[t]hey are errors that are undebatable, so
that it can be said that reasonable minds could only conclude that
the original decision was fatally flawed at the time it was made.  A
determination that there was a 'clear and unmistakable error' must be
based on the record and the law that existed at the time of the
prior...decision."  Russell v. Principi, 3 Vet.App. 310, 313-314
(1992).  Subsequently developed evidence is not applicable.  Porter
v. Brown, 5 Vet.App. 233, 235-236 (1993).

"It is the kind of error, of fact or of law, that when called to the
attention of later reviewers compels (emphasis in original) the
conclusion, to which reasonable minds could not differ, that the
result would have been manifestly (emphasis in original) different
but for the error."  Fugo, 6 Vet.App. at 43.  The allegation that
previous adjudications had improperly weighed and evaluated the
evidence does not meet the definition of clear and unmistakable
error.  Id. at 44.

A precedent opinion issued by the VA General Counsel involving
questions concerning veteran's benefits provided under laws
administered by VA shall be binding upon the Board unless there is a
change in the controlling statute or regulation, or a superseding
written legal opinion by the General Counsel.  38 C.F.R. § 14.507
(1993).

The General Counsel was requested to issue an opinion regarding the
question:  "Do decisions of the U.S. Court of Veterans Appeals (CVA
or court) invalidating Department of Veterans Affairs (VA)
regulations or statutory interpretations have retroactive effect?"
VA O.G.C. Prec. Op. No. 9-94 (Mar. 25, 1994).

The General Counsel stated:

1.  You have requested our opinion regarding the
possible retroactive effect of a decision by the
CVA on prior, final Veterans Benefits
Administration determinations made in reliance
upon a regulation or statutory interpretation
invalidated by the CVA decision.  Specifically,
you refer to the impact of the CVA decisions in
Gardner v. Derwinski, 1 Vet.App. 584
(1991),...Cole v. Derwinski, 2 Vet.App. 400
(1992),...Gregory v. Brown, 5 Vet.App. 108
(1993) (regulation was unlawful as exceeding
authority of the Secretary to the extent that it
eliminated part of a statutory test); and
Salgado v. Brown, 4 Vet.App. 316 (1993)....

The General Counsel further stated:

4.  When the CVA invalidates a VA regulation or
statutory interpretation, arguably the only
basis that might authorize the Veterans Benefits
Administration to award benefits retroactively
to the date of the initially denied claim would
be 38 C.F.R. § 3.105(a).  The CVA has not
specifically addressed the applicability of
section 3.105(a) in this situation....

The General Counsel then discussed holdings by the Court in previous
cases pertinent to the issue of whether it was clear and unmistakable
error for the VA to deny claims based on a regulation that was
subsequently invalidated by the Court.  The General Counsel opined
that the decisions of the Court suggested that the invalidation of
regulations does not have retroactive effect.

The General Counsel then stated:

6.  Moreover, although agencies of original
jurisdiction have authority to correct "clear
and unmistakable error" in prior decisions under
38 C.F.R. § 3.105(a), that regulation by its
terms does not apply where "there is a change in
law or Department of Veterans Affairs issue, or
a change in interpretation of law or a
Department of Veterans Affairs issue."  The
provision for revision of decisions based on
clear and unmistakable error has contained such
an exception since the regulation originated
under the auspices of the Veterans
Bureau....Noting this exception to section
3.105(a), the General Counsel has in recent
years distinguished between decisions based on
"clear and unmistakable error" and decisions
based on a prior legal interpretation.  See
O.G.C. Prec. 93-90; O.G.C. Prec. 88-90; Digest
Opinion, 7-1-87 (8-17 Ratings - General).
Accordingly, it is our view that section
3.105(a) provides no authority, other than that
provided under 38 U.S.C. § 5110(g), for
retroactive payment of benefits when the CVA
invalidates a VA interpretation or regulation.

The General Counsel concluded:

9.  Accordingly, we find that awards based on
the CVA invalidation of regulations in Gardner
and the other cases you referenced should not be
made retroactive with respect to claims that
have been "finally" denied.  If the VA changes a
regulation to conform to a CVA holding, the
effective date of an award of benefits pursuant
to such amendment would be governed by 38 U.S.C.
§ 5110(g) and 38 C.F.R. § 3.114.

In summary, the VA General Counsel held:

Decisions of the CVA invalidating VA regulations
or statutory interpretations do not have
retroactive effect in relation to prior "final"
adjudications of claims, but should be given
retroactive effect as they relate to claims
still open on direct review.

Id.

In response to General Counsel's Precedent Opinion 9-94, the
appellant's attorney replied in April 1994:

I believe your proposed restriction of the
Gregory v. Brown decision to current and future
cases is erroneous.  I believe retroactive
application must be given to that decision to
all final decisions issued by the Board
regardless of when those decisions were made and
whether they are currently open.  To hold
otherwise would be to deny benefits to the
individuals clearly deserving those benefits
under the law simply because [the] Board's
erroneous legal decisions were insulated from
review until 1988.  I do not believe unlawful
action can ever be justified to deny Veteran's
and their survivors their rights under the law.

However, as previously noted, the Board is bound by a precedent
opinion as to the matter at issue of the opinion.  In Precedent
Opinion 9-94, the General Counsel directly addressed the matter of
the retroactive effect of the Court's invalidation of the first
sentence of 38 C.F.R. § 3.53(a), including the intertwined issue of
whether reliance in the past by the VA on that particular provision
of the regulation amounted to clear and unmistakable error.
Therefore, the Board has no discretion in deciding this issue.  To
the extent that the attorney's comments raise the issue of equitable
relief based on administrative error, the Board does not have the
authority to grant such relief, and any request for such relief must
be made directly to the Secretary of the VA.  38 C.F.R. § 2.7 (1993).

Furthermore, we believe that the General Counsel's conclusion is
supported by a recent decisions by the Court.  In Stillwell v. Brown,
No. 92-205 (U.S. Vet. App. Mar. 11, 1994), the Court denied the
appellant's application for an award of reasonable attorney fees and
expenses under the Equal Access to Justice Act.  In that case, the
appellant's claim for death benefits had also been denied on the
basis of her conduct after separation from the veteran.  Although the
Court did not face the issue squarely before us, and was determining
whether the VA's use of the appellant's conduct following her
separation from the veteran was "substantially justified," the Court
did find that "the VA may have reasonably, although incorrectly,
inferred from the use of the word 'desert' in § 3.53(b), a need for
continuing faultless conduct after separation in cases not involving
separation by mutual consent."  Id., slip opinion at 21.  If the VA's
interpretation of the 38 C.F.R. § 3.53(b) to require continuing
faultless conduct after separation from the veteran was reasonable,
it cannot be said the erroneous application of 38 C.F.R. § 3.53(a) to
this case was "clear," "undebatable," and "unmistakable" error.

Thus, in accordance with the VA General Counsel's Precedent Opinion
9-94, we determine that clear and unmistakable was not committed by
the RO in 1967 when it relied on 38 C.F.R. § 3.53(a) to deny the
appellant's claim.

In referring to the language used by the RO in its 1967
Administrative Decision, the appellant asserts that clear and
unmistakable error was also committed when the RO relied upon 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).

As recently as May 1993, 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.  The
Court's holding in Gregory invalidated this provision of the M21-1.

The appellant argues that the rebuttable presumption stated in the
M21-1 was a substantive rule and was void because it was 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 (1993) in
support of her contention.  In that case, the Court held that the
VA's recision 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.

Initially, the Board notes that the M21-1 rebuttable presumption
could not have violated the APA in 1967 since the VA has only been
voluntarily bound by the APA since 1972 and bound by statute since
1988.  Id. at 107, 108.  In addition, when the VA "waived the
agency's exemption from the APA in 1972,...the procedural demands of
that statute were not retroactively applicable to regulations already
in existence."  Carter v. Cleland, 643 F.2d 1, 7 (D.C. Cir. 1980)

Moreover, even if the rebuttable presumption had not been contained
in the M21-1, the RO's decision would have been the same.  The
evidence that she bore a child out-of-wedlock indicated that there
was some fault on the part of the appellant for the continuing
separation from the veteran.  Under the regulation then in effect, in
order to overcome this inference of fault, she had to submit
sufficient evidence that the veteran condoned the birth.  Thus, the
M21-1 rebuttable presumption merely acknowledged the common-sense
inference and did not require the appellant to submit any more
evidence than was already required by regulation.  The M21-1 rule was
"neither an irrebuttable presumption nor a binding regulation."  Id.
at 8.

In addition, 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
that were in effect at that time to the relevant facts.  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.  The Board determines that the evidence does
not establish that there was an undebatably clear and unmistakable
error in the RO's 1967 Administrative Decision.

ORDER

The appellant is not entitled to recognition as the veteran's
surviving spouse based and clear and unmistakable error by the RO in
its Administrative Decision in October 1967 and the claim is not
reopened on the basis of new and material evidence.

The appellant is entitled to recognition as the surviving spouse of
the veteran for the purpose of VA death pension benefits based on her
new claim received in August 1990.

BOARD OF VETERANS' APPEALS
WASHINGTON, D.C.  20420

          WARREN W. RICE, JR.     JACQUELINE E. MONROE

          CHARLES E. HOGEBOOM

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.