Citation Nr: 0005438 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 98-14 642 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUE Whether new and material evidence has been presented to reopen a claim for entitlement to recognition as the surviving spouse of the veteran for the purpose of Department of Veterans Affairs (VA) death benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. Spear Ethridge, Associate Counsel INTRODUCTION The veteran served on active duty from March 1927 to May 1947. The veteran died in January 1977, and the appellant is the purported widow of the veteran. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating actions by the Manila, Philippines Regional Office (RO) of the VA. The United States Court of Appeals for Veterans Claims (hereinafter, "the Court") was known as the United States Court of Veterans Appeals prior to March 1, 1999. In a May 1999 statement, the appellant withdrew her request for a personal hearing before a Member of the Board. No further duty to assist her in that regard is warranted. 38 U.S.C.A. § 5107 (West 1991). In February 2000, the Board received mail from the appellant that was sent directly to the Board. Regarding consideration of additional evidence, pursuant to 38 C.F.R. § 20.1304(c), any pertinent evidence submitted by the appellant or representative which is accepted by the Board under the provisions of this section...must be referred to the agency of original jurisdiction for review and preparation of a Supplemental Statement of the Case unless this procedural right is waived by the appellant or representative or unless the Board determines that the benefit, or benefits, to which the evidence relates may be allowed on appeal without such referral. Such waiver must be in writing or, if a hearing on appeal is conducted, formally entered on the record orally at the time of the hearing. Id. The appellant has submitted additional evidence directly to the Board, without a written waiver. The evidence consists of a request for an advance on the docket for consideration of her appeal, due to her failing health, as evidenced in outpatient treatment records submitted for the Board's review. Also submitted was another duplicate copy of a marriage certification between the appellant and the veteran, of which several copies are of record. Consequently, the Board determines that no written waiver is necessary, and that the mail sent directly the Board is not pertinent evidence that must be referred to the agency of original jurisdiction. It is not considered pertinent evidence because it does not pertain to legality and validity of a marriage, which is the basis of the issue on appeal. Rather, it shows the current health status of the appellant, which is not at issue here, and the remainder of the mail is a request for an advance on the docket and duplicative evidence. Id. The Board notes that the Court erred in adopting the test articulated in Colvin v. Derwinski, 1 Vet. App. 171 (1991). See Hodge v. West, 155 F.3d 1356, 1363-64 (Fed. Cir. 1998). In Colvin, the Court adopted the following test with respect to the nature of the evidence which would constitute "material" evidence for purposes of reopening of a previously denied claim: "there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome of the claim on the merits." Colvin, 1 Vet. App. at 174. In light of the holding in Hodge, the Board will analyze the evidence submitted in the instant case according to the standard articulated in 38 C.F.R. § 3.156(a) (1999). In view of the fact that the Court has held in Fossie v. West, 12 Vet. App. 1 (1998), that the standard articulated in 38 C.F.R. § 3.156(a) is less stringent than the one previously employed by Colvin, the Board determines that no prejudice will result to the appellant by the Board's consideration of this matter. See Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993). Procedural history reveals that in June 1978, the RO conducted a Field investigation to determine whether the appellant, who was the claimant at the time, could be recognized as the veteran's legal widow under the deemed valid marriage rule. In August 1978, the RO wrote an Administrative decision for the record. The issue was whether the marriage of the veteran to claimant, [redacted] [redacted], may be deemed valid. The facts and a discussion were provided. The RO concluded that the veteran's marriage to the claimant was not deemed valid. She perfected an appeal to the Board. In an April 1979 decision, the Board phrased the issue as one for entitlement to recognition as the surviving spouse of the veteran for the purpose of entitlement to VA benefits. The Board found that the veteran was married to another in 1949, and that that marriage was never dissolved; that the veteran and appellant, [redacted], were married in January 1961, at which time appellant had knowledge of a legal impediment to her marriage to the veteran; and that the veteran died in January 1977. The Board concluded that the appellant was not the legal spouse of the veteran at the time of his death; and that the appellant's marriage to the veteran may not be recognized on a "deemed valid" basis for VA purposes. Her claim was denied. When the Board affirms a determination of the agency of original jurisdiction, such determination is subsumed by the final appellate decision. 38 U.S.C.A. § 7104(a) (West 1991); 38 C.F.R. § 20.1104 (1999). FINDINGS OF FACT 1. In April 1979, the Board issued a decision which denied the appellant's claim for entitlement to recognition as the surviving spouse of the veteran for the purpose of VA death benefits. 2. The evidence associated with the record subsequent to the April 1979 Board decision is not new because it is cumulative and redundant, and does not bear directly and substantially upon the specific matter now under consideration; which is whether there is evidence showing that the appellant was the legal spouse of the veteran at the time of his death in January 1977. 3. When considered alone or together with all of the evidence, the additional evidence submitted for the record has no significant effect on the facts previously considered. CONCLUSION OF LAW The April 1979 Board decision, denied recognition of the appellant as the surviving spouse of the veteran for the purpose of entitlement to VA benefits, is final, and the evidence received since the April 1979 Board decision, is not new and material. 38 U.S.C.A. §§ 5108, 7104(a) (b) (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.104, 3.156, 20.1100(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant seeks to reopen a final claim, denied by the Board in April 1979. The law pertinent to the issue on appeal in April 1979, is as follows: To be entitled to death benefits as a "surviving spouse" of a veteran, the claimant must have been the veteran's spouse at the time of the veteran's death. 38 U.S.C. § 1013, 410, 541 Death benefits may be granted where the claimant, without knowledge of any legal impediment, entered into a marriage with the veteran which, but for the impediment, would have been valid, and she thereafter cohabited with him for one year or more immediately before his death, or for any period of time if a child was born of the purported marriage or was born to them before such marriage. Such claimant is not eligible, however, if claim is filed by a legal widow of the veteran who is found entitled to such benefits. 38 U.S.C. § 103(a). Unless the Chairman of the Board orders reconsideration, all decisions of the Board are final on the date stamped on the face of the decision. 38 C.F.R. § 20.1100; see also 38 U.S.C.A. §§ 511(a), 7103, 7104(a). The appellant in the instant case has not petitioned for reconsideration of this case. Accordingly, the Board's April 1979 decision is final. Id. "If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Board shall reopen the claim and review the former disposition of the claim." 38 U.S.C.A. § 5108. Except as provided by 38 U.S.C.A. § 5108, when the Board disallows a claim, it may not thereafter be reopened and allowed, and no claim based on the same factual basis shall be considered. 38 U.S.C.A. § 7104(b); see also 38 C.F.R. § 19.153 (1976) (an action or determination on a claim by the agency of original jurisdiction shall become final if an appeal is not initiated and perfected...., and the claim cannot thereafter be reopened or allowed, except as may be otherwise provided by VA regulations). When a claimant seeks to reopen a claim after an appellate decision and submits evidence in support of that claim, a determination must be made as to whether this evidence is new and material and, if it is, whether it provides a new factual basis for allowing the claim. 38 C.F.R. § 20.1105(1999); see also 38 U.S.C.A. § 5108, 7104. Therefore, once a Board decision becomes final under section 7104(b), "the Board does not have the jurisdiction to consider [the previously adjudicated claim] unless new and material evidence is presented, and before the Board may reopen such claim, it must so find." Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). New evidence will be presumed credible for purposes of determining whether new and material evidence has been presented to reopen the previously denied claim. See Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curiam) (holding that the presumption of credibility doctrine articulated in Evans v. Brown, 9 Vet. App. 273 (1996) continues to be binding precedent). "New and material evidence" means evidence not previously submitted to agency decision makers, which bears directly and substantially upon the specific matter under consideration, which is neither cumulative or redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). With regard to petitions to reopen previously and finally disallowed claims, the Board must conduct a three-step analysis. Winters v. West, 12 Vet. App. 203, (1999) (explaining the holding in Elkins v. West, 12 Vet. App. 209 (1999)). First, the Board must determine whether the veteran has submitted new and material evidence under 38 C.F.R. § 3.156(a). If the Board determines that the submitted evidence is not new and material, then the claim cannot be reopened. Second, if new and material evidence has been presented, then immediately upon reopening the claim the Board must determine whether, based on all the evidence of record in support of the claim, presuming the credibility, see Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995), the claim as reopened (and as distinguished from the original claim) is well grounded pursuant to 38 U.S.C.A. § 5107(a). Third, if the claim is well grounded, the Board may then proceed to evaluate the merits of the claim but only after ensuring that the VA's duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. Winters and Elkins, both supra; see also Manio v. Derwinski, 1 Vet. App. 140, 145-46 (1991). The evidence of record at the time of the April 1979 Board decision included a marriage certificate, showing that the veteran was married to V. M. in 1934 and a copy of a decree of annulment disclosed that the marriage was dissolved in October 1946. A declaration of marital status, received from the veteran in November 1950, showed that he was married to A.A.N., that they did not live together and that A.A.N. was intending to file for divorce. Official birth records disclosed that children were born to the veteran and appellant, and official marriage records disclosed that the veteran and appellant were married in January 1961. A copy of the veteran's death certificate was of record, showing that he died in January 1977. Department of the Navy records showed that the appellant was entitled to annuity compensation under the survivor benefit plan of the veteran. Statements from the appellant were of record, which indicated that she knew the veteran to have only been married and divorced once, and that the veteran never mentioned a marriage to A.A.N. November 1977, and October 1978 records from the Civil Registrar show certification that there was no data pertaining to the marriage of the veteran and A.A.N. A Field Examination conducted in June 1978. The appellant and her family were interviewed. In her first sworn deposition, the appellant stated that she had no knowledge of any legal impediment to her marriage to the veteran. After the appellant's relatives advised the field examiner that the appellant had lived as the housemaid for the veteran and A.A.N, and that she therefore had knowledge of their marriage, she acknowledged the same in the second of two depositions. Also in her second deposition, the appellant admitted that at the time of her marriage to the veteran in 1961, she knew that he had a prior undissolved marriage with A.A.N. Additional evidence received in conjunction with the appellant's claim to reopen includes statements encompassing the appellant's contentions that she was the surviving spouse of the veteran at the time of his death; and duplicate records, a September 1997 record from the Civil Registry, and a December 1997 record from the Records Management and Archives Office. The duplicate records received are of the marriage contract between the appellant and the veteran, and a duplicate copy of the 1977 Navy document showing the appellant's entitlement to annuity benefits. Duplicative in content is the September 1997 record from the Civil Registry which said the same thing as was certified in November 1977 and October 1978; that there was no data about the marriage between the veteran and A.A.N. The September 1997 record from the Civil Registry indicates certification that that Office had no record of marriage between the veteran and A.A.N, and that the records of marriages for the year 1949 were still intact in the archives of that office. The December 1997 record from the Records Management and Archives Office indicates certification that there was no available information from the Register of Marriages in 1949 about the marriage of the veteran to A.A.N. The Board at this time has reviewed all of the additional evidence received by the Board since its April 1979 decision, and determines that this information is not new. That is, certainly the duplicate copies the marriage certificate of the veteran to the appellant and the Navy benefits she received as his surviving spouse are not new. Again, the September 1997 Civil Registrar document is identical in content to the November 1977 and October 1978 records, which the Board considered at the time of its April 1979 decision. The content of the December 1997 record is also the same; namely indicating that there is no archival information on the veteran's marriage to A.A.N., a fact, again, also considered previously by the Board. The matter under consideration here is whether the appellant was the surviving spouse of the veteran at the time of his death in January 1977, and whether their marriage could be "deemed valid" for VA purposes. Competent evidence showing that the veteran's marriage to A.A.N. was dissolved, and, that the appellant had no knowledge of a legal impediment to her marriage to the veteran, would have to be presented in order for the appellant to reopen this finally denied claim. Considering the fact that the appellant admitted in a sworn deposition in June 1978, that she had knowledge of a legal impediment to her marriage to the veteran, new evidence to the contrary is probably difficult to supply, but, nonetheless, is what is required by law to reopen this claim. Without evidence that bears directly and substantially on the matter under consideration, the claim of entitlement to recognition as the surviving spouse of the veteran for the purpose of VA death benefits remains denied. Accordingly, the evidence received subsequent to the April 1979 Board decision pertaining to the appellant's purported marriage to the veteran, is, therefore, cumulative of the evidence previously of record. 38 C.F.R. § 3.156(a). Because the evidence is not "new," its materiality need not be determined. Smith v. West, 12 Vet. App. 312, 315 (1999) (if the evidence is not "new," the analysis ends there; its materiality is not relevant). The Board views its discussion as sufficient to inform the appellant of the elements necessary to complete her application to reopen her claim for status as a surviving spouse of the veteran. See Graves v. Brown, 8 Vet. App. 522, 524 (1996); Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995). ORDER New and material evidence having not been presented to reopen a claim for entitlement to recognition as the surviving spouse of the veteran for the purpose of VA death benefits, the claim remains denied. Deborah W. Singleton Member, Board of Veterans' Appeals