BVA9504107 DOCKET NO. 92-16 099 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to Department of Veterans Affairs death benefits as surviving spouse of the veteran. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The appellant and the appellant's daughter ATTORNEY FOR THE BOARD R. A. Caffery, Counsel INTRODUCTION The veteran had almost continuous service from November 1939 to June 1961. An appeal has been taken from a February 1992 determination by the Department of Veterans Affairs (VA) Regional Office (RO), Los Angeles, California, that the appellant was not entitled to VA death benefits as surviving spouse of the veteran since she and the veteran were divorced at the time of his death. The case was initially before the Board of Veterans' Appeals (Board) in November 1993 when it was remanded for further action. The case is again before the Board for further appellate consideration. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in substance, that she should be entitled to VA death benefits as surviving spouse of the veteran for the following reasons: She and the veteran were married for 28 years and 20 of those years he spent in the military service, often away from the home. She was a Navy wife and had to raise five children by herself. The veteran's alcohol abuse created a dysfunctional environment. Neither the Navy nor the VA required him to undergo any rehabilitation programs even though he was in and out of Navy and VA hospitals. The veteran struck her and the children, used severe profanity regardless of the situation, and gambled. Their lives were miserable, but she was too afraid and insecure to leave the veteran. It was not until his drinking resulted in child molestation that she drew the line. The veteran was incarcerated at a State prison. The veteran filed for divorce, left the State and never paid her any alimony or child support. She did not contest the divorce because she finally realized he was hopeless. She was afraid that he would kill her or one of the children in a drunk driving accident or kill someone else. She could not longer subject her family to his abuse. If the veteran had not been convicted of child molestation, she probably would have attempted a reconciliation. She was alone and afraid, but she could not forget what had happened. The appellant indicates that she has a heart condition she believes was caused by the tension that was always present in their household and mental and physical abuse on the part of the veteran. She has never remarried. The appellant's representative has indicated that the veteran might not have had the capacity to participate in all of the divorce proceedings and his attorney may have taken all actions with regard to those proceedings with the veteran only signing the necessary documents. The representative has requested that these matters be resolved prior to further appellate review and that records from attorneys for the appellant and veteran regarding the divorce proceedings be obtained. 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. 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 is not entitled to recognition as surviving spouse of the veteran for purposes of VA death benefits. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the regional office. 2. The appellant and veteran were married in March 1955 and divorced in 1979. They had previously been married to each other and divorced. The veteran died in September 1991. CONCLUSION OF LAW Since the appellant was not the lawful spouse of the veteran at the time of his death, she is not entitled to VA death benefits as surviving spouse of the veteran. 38 U.S.C.A. §§ 101(3), 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board is satisfied that all relevant facts have been properly developed in this case. The Board notes that the appellant's representative has questioned whether the veteran had the necessary capacity to participate in the divorce proceeding and has requested that office records from the attorneys for the veteran and appellant be obtained. However, although the veteran had a number of disabilities and had problems with alcoholism, the record does not indicate that he was mentally incapacitated at the time of the divorce proceedings. The record includes a January 1977 report by a private psychiatrist indicating that, although the veteran was mildly depressed and might have some minimal brain damage as a result of alcoholism, his intellectual functions appeared generally intact. The psychiatrist's assessment was that, while otherwise sane under the Penal Code definition, it seemed clear that the veteran had been so inebriated at the time of the alleged offenses that he had been unable to appreciate the nature of his actions. While a State Department of Health officer noted in a June 1977 letter to the appellant that he had been committed to a State hospital, having been found innocent of a criminal charge because he was mentally ill, this pertains to his responsibility regarding criminal charges and does not show he was incompetent for purposes of participating in the subsequent divorce action. Further, the appellant has conceded that she and the veteran were divorced prior to his death, and no evidence in support of the above contentions has been presented. Accordingly, the Board believes that the evidence of record is adequate to equitably decide the matter under consideration. The record reflects that the appellant and veteran were married in March 1955. They had been married to each other prior to the March 1955 marriage and divorced. There is of record an April 1986 judgment of dissolution of the marriage between the appellant and veteran rendered by a California Superior Court. The court ordered that the judgment be entered nunc pro tunc as of July 1979. In order to establish entitlement to recognition as surviving spouse of a veteran for purposes of VA death benefits, it is required, in part, that the claimant be the lawful spouse of the veteran at the time of his death. 38 U.S.C.A. § 101(3). Since the appellant and veteran were divorced prior to his death, it is apparent that this prerequisite has not been met. Thus, favorable action in connection with the appellant's appeal is not possible in this case. The appellant has maintained that the veteran was an abusive alcoholic and had struck her and her children, used severe profanity, gambled and created a dysfunctional environment for the family. She has indicated that his drinking resulted in child molestation and he was incarcerated at a State prison. She has related that, if the veteran had not been convicted of child molestation, she probably would have attempted a reconciliation, but she was alone and afraid and could not forget what happened. She has indicated that the veteran filed for the divorce and thereafter left the State. The appellant has provided a number of documents and statements in support of her assertions, including a copy of criminal charges filed against the veteran for child molestation in 1976 and the January 1977 report by the psychiatrist indicating that the veteran had problems with alcoholism. However, although the record certainly tends to indicate that the divorce between the veteran and appellant was occasioned as a result of misconduct on his part, the reason or reasons for a divorce are not legally relevant to the matter under consideration. As indicated previously, it is required that the appellant and veteran be lawfully married at the time of his death and this requirement has not been satisfied. The Board has carefully reviewed the entire record in this case, including the testimony presented by the appellant and her daughter at the June 1992 hearing at the regional office. However, for the reasons already discussed, a basis for an allowance of the appellant's claim has not been demonstrated. The facts in this case are clear and there is no doubt as to any material issue. 38 U.S.C.A. § 5107. ORDER Entitlement to Department of Veterans Affairs death benefits as surviving spouse of the veteran is not established. The appeal is denied. WAYNE M. BRAEUER 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. 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.