BVA9504966 DOCKET NO. 93-13 925 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Whether the appellant had continuously cohabited with the veteran until his death so as to establish basic eligibility for Department of Veterans Affairs (VA) death benefits as the surviving spouse of the veteran. WITNESSES AT HEARING ON APPEAL The appellant and her son ATTORNEY FOR THE BOARD Thomas H. Tousley, Associate Counsel INTRODUCTION The veteran had active military service from February 1942 to January 1944. He died in March 1987. This matter comes before the Board of Veterans' Appeal (Board) on appeal of an August 1991 Administrative Decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. REMAND The evidence shows that the appellant, [redacted], married the veteran in 1943 while he was in the service. One child was born of the marriage that same year. In February 1992, the appellant testified at a hearing at the Philadelphia RO that upon the veteran's separation from service in 1944, he never returned to her in Philadelphia, Pennsylvania. The evidence indicates the veteran moved to Seattle, and married [redacted] in July 1952. From 1967, when he was awarded VA nonservice-connected pension, until his death, he reported to the VA that he divorced [redacted] in Oakland, California in 1944. In 1987, the VA awarded nonservice-connected death pension to [redacted] based on her marriage to the veteran. That same year, the Social Security Administration (SSA) also awarded widow's benefits to [redacted] on the same basis. In 1989, however, the SSA terminated [redacted]'s widow's benefits based on evidence that the veteran never divorced his first wife, the appellant. In August 1990, the SSA awarded widow's benefits to the appellant based on her marriage to the veteran. In October 1990, the appellant filed an application for VA death pension. The county in which Oakland, California, is located, Alameda County, reported to the VA in 1991 that there is no record of the veteran divorcing the appellant in that jurisdiction. In May 1991, the appellant informed a VA field examiner that she gave birth to a child by another man in 1956. The "surviving spouse" of a veteran may be eligible to receive VA death pension if the veteran was in receipt of nonservice- connected pension at the time of the veteran's death. 38 U.S.C.A. § 1541 (West 1991). The term "surviving spouse" means: A person of the opposite sex 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).... 38 U.S.C.A. § 101(3) (West 1991). At the time of the RO's Administrative Decision in August 1991, 38 C.F.R. § 3.53(a) (1991) stated: "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 there was no separation due to the fault of the surviving spouse." The RO made the finding that although the appellant was not at fault at the time the veteran separated from her, she was not without fault throughout the period of separation because she gave birth to a child by another man. Therefore, the RO determined that she was not the surviving spouse of the veteran because continuous cohabitation had not been established between the appellant and the veteran from the time of their marriage until the death of his death. Subsequent to the RO's August 1991 Administrative Decision, the United States Court of Veterans Appeals (Court) held in Gregory v. Brown, 5 Vet.App. 108 (1993), that the above quoted sentence of 38 C.F.R. § 3.53 was unlawful as imposing a requirement not found in the law. The Court determined that a two-part test must be met by a person claiming to be a surviving spouse. First, the spouse must be without fault at the time of separation. Second, the separation must have been due to the misconduct of the veteran. In addition, in contrast to the VA's previous interpretation of the law, the Court found that the "without fault" requirement of the law was not a continuing one. Rather, although acts subsequent to the separation may in certain cases be relevant evidence, the finding of fault or without fault is to be determined on the basis of an analysis of the conduct at the time of separation. Id. at 112. Although the Court's decision was issued subsequent to the RO's Administrative Decision in this case, the Court's holding is binding precedent that must be applied in this case. See Karnas v. Derwinski, 1 Vet.App. 308, 313 (1991). Based on the evidence in this case, the Board finds that the appellant's claim is well-grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). Once the appellant has submitted a well-grounded claim, the VA has a duty to assist her in the development of his claim. See Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). In addition, by an Administrative Decision in August 1991, the RO determined that the veteran's second wife, [redacted], had a "deemed valid" marriage to the veteran for the purpose of receiving VA death pension because she was unaware of the legal impediment to their marriage because she had believed the veteran had divorced the appellant prior to his marriage to [redacted]. As a result of this decision, [redacted] has continued to receive VA death pension since the appellant was found not to be entitled to VA death pension. See 38 C.F.R. § 3.52(d) (1994). The contested claims procedures apply in this case since two parties claim the same benefit. See 38 C.F.R. §§ 20.500 - 20.504 (1994). The Board notes that the RO has not had the opportunity to develop additional evidence in this case, if necessary, and to readjudicate the issue on appeal, in light of the Court's holding in Gregory. Accordingly, this case is REMANDED to the RO for the following action: The RO should again review the evidence in light of the two-part test set forth in Gregory. First, the RO must determine whether the appellant was without fault at the time of separation. Second, the RO must determine whether the separation was due to the misconduct of the veteran. If necessary, the RO should develop the evidence to resolve these questions. If the benefit sought on appeal is not granted, the contested claims procedures should be followed with the issuance of a supplemental statement of the case to the appellant and to the veteran's second wife, [redacted]. Both parties should be allowed the applicable period of time to respond before the record is returned to the Board for further review. This purpose of this REMAND is to afford the RO the opportunity to readjudicate the issue on appeal and to afford both parties due process in this appeal, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. JACQUELINE E. MONROE Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).