Square v. Wilkie, 18-5832
| Decision Date | 30 September 2020 |
| Docket Number | 18-5832 |
| Parties | Betty Square, Appellant, v. Robert L. Wilkie, Secretary of Veterans Affairs, Appellee. |
| Court | United States Court of Appeals For Veterans Claims |
Pursuant to U.S. Vet.App. R. 30(a), this action may not be cited as precedent.
Nigel Barrella, Esq. General Counsel
Before PIETSCH, Judge.
Appellant Betty Square, surviving spouse of veteran Maynard F. Square appeals through counsel the June 14, 2018, Board of Veterans' Appeals (Board) decision in which the Board subject to the laws and regulations governing the payment of monetary benefits, granted an effective date of April 17 2009, but no earlier, for non-service-connected death pension benefits. Record of Proceedings (R.) at 5-14. This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will vacate the Board's June 14, 2018, decision and remand the matter on appeal for further proceedings consistent with this decision.
The veteran served on active duty in the U.S. Army from September 1943 to December 31, 1945. R. at 639, 654-55. In a March 1995 marriage certification form, the veteran listed the names of his previous spouses, the dates of his prior marriages, and the dates of his divorces. R. 307. The veteran stated that he was first married to Kate Jackson in 1946, and they divorced at an unknown date, and his second marriage to Martha Bryant ended when they divorced in August 1980. Id. On the form, the veteran also stated that he was currently married to the appellant. Id. The record reflects that the veteran married the appellant on January 8, 1982, R. at 314, and the appellant and the veteran remained married until he passed away on January 2, 2002. R. at 264. On his death certificate, the appellant was listed as the veteran's surviving spouse. Id.
In October 1997, Sandra Finley, daughter of the veteran and the appellant, filed a claim seeking to add the appellant as a dependent to the veteran's pension award. R. at 332. Ms. Finley contended that VA was erroneously paying the veteran as an unmarried veteran. Id. Along with this statement, she submitted a Declaration of Status of Dependents form, which reflected that before marrying the appellant in January 1982, the veteran had been married and divorced twice. R. at 328. In February 1998, the regional office (RO) denied the claim to add the appellant as a dependent to the veteran's pension award. R. at 322-23. In reaching this determination, the RO noted that at the September 1996 field examination, the veteran had stated that he was separated and did not contribute to the support of his spouse (the appellant), and he had no information regarding her income. R. at 322-23. The veteran had also stated that he was currently separated from his spouse and he was currently living alone in his household. R. at 336-37. In the February 1998 decision, the RO noted that if Ms. Finley wished to reopen her claim to establish the appellant as a dependent, she should provide additional information and documents, to include copies of the veteran's divorce decrees from his previous marriages, as well as divorce decrees from the appellant's prior marriages. R. at 322-23.
In April 1998, Ms. Finley attempted to reopen the claim and submitted several documents including the veteran and the appellant's marriage license, a March 1995 letter from the Social Security Administration (SSA) documenting the appellant's Social Security spousal benefits, and marriage certificates from the appellant's prior marriages. R. at 299-320. In the March 1995 SSA letter, the SSA determined that the appellant is entitled to monthly spousal benefits in the amount of $436 beginning around April 6, 1995, and $218 every month afterwards. R. at 318-20. In a July 1998 decision, the RO denied the appellant's claim and noted that because of conflicting statements regarding the veteran's divorce and statements from the appellant, "a statement from the county clerk in the county [in] which the veteran lives should be submitted showing that no divorce decree is of record for the veteran and [the appellant]." R. at 297-98. The RO also requested the date the appellant's previous marriage terminated, and the date the veteran began contributing to the appellant's support, as well as proof of such payment. Id.
In a July 1998 letter, Ms. Finley noted that from 1982 to the present, Social Security benefits served as the only source of her parents' income, which the appellant continues to receive. R. at 289. In an April 1999 letter, the RO denied the claim again and explained that Ms. Finley had not submitted copies of the veteran's divorce decrees from his previous marriages, nor had she submitted evidence to show that the veteran was helping to support the appellant. R. at 283-84.
In January 2002, the RO received correspondence from a former wife of the veteran, Martha Square, "regarding beneficiary of [the veteran]." R. at 274. Along with her letter, she submitted a copy of their marriage license, R. at 269-70, documentation of an unsuccessful search for divorce records in Dallas County, R. at 272, and a copy of her driver's license. R. at 276. In a letter received on January 14, 2002, Martha's daughter, Yvette Square, requested "an application for [herself] and [her] mother." R. at 258. In response to this correspondence, the RO informed Martha Square that if she wished to file a claim as the veteran's widow, she should complete and file the enclosed VA Form 21-534, Application for Dependency and Indemnity Compensation, Death Pension and Accrued Benefits by a Surviving Spouse of Child, and submit proof that the veteran's previous marriage had legally terminated. R. at 271. VA also informed Martha Square that reviewing the veteran's VA claims file, revealed that he previously advised VA that he and Martha had divorced in 1979 or 1980 in Detroit and the Agency had a copy of a marriage certificate between the veteran and the appellant dated January 8, 1982. Id.
On January 3, 2002, Ms. Finley filed an Application for United States Flag for Burial Purposes, R. at 240, and on January 14, 2002, she submitted a VA Form 21-530, Application for Burial Benefits, R. at 266-67. In an April 30, 2002, letter, VA authorized a payment of $300 for the veteran's burial allowance, stating that this payment is based on non-service-connected death. R. at 223. In an April 2009 submission, the appellant stated that she was seeking spousal benefits. R. 221-22.
In October 2009, Ms. Finley contacted the VA and requested a status update on her death pension claim. R. at 217. A VA Form 119, Report of Contact, reflects that a VA representative informed her that the Agency had no pending death pension claim on file. Id. The form also reflects that VA accepted the October 2009 call as an informal claim. Id.
In January 2010, VA sent the appellant a VA Form 21-534, R. at 218, which the appellant completed and returned in August 2010. R. at 207-14. In February 2011, VA contacted the appellant and asked her to provide information pertaining to her and the veteran's marital history. R. at 187. In response, the appellant stated that the veteran's second marriage, to Martha, ended in August 1960, and her marriage to her previous husband ended in April 1975. Id. When asked about her assets, the appellant states that she has no bank account and the only income she receives is from her Social Security disability benefits. Id. She also states that she does not work and "did not gain any interest from any source." Id.
In a February 2011 decision, the RO granted the appellant's death pension claim, effective August 2, 2010. R. at 181-84.
In the February 2012 Notice of Disagreement (NOD), Ms. Finley disagreed with both the amount of the monthly death pension benefits and the effective date of the award. R. at 166-69. According to Ms. Finley, she filed for death pension benefits on behalf of her mother very soon after the veteran's death in January 2002. Id. In a March 2015 Statement of the Case (SOC), the RO denied the claims for an increased death pension award and an effective date earlier than August 2, 2010, for the grant of death pension benefits. R. at 90-114. The appellant perfected her appeal in April 2015. R. at 84. At the Board's July 27, 2017, videoconference hearing, Ms. Finley testified that she had contacted VA after her father's death in January 2002, and the Agency sent her the appropriate burial benefit forms. R. at 33. According to Ms. Finley, when she submitted her claim for burial benefits on January 14, 2002, she believed her claim included the claim for death pension benefits. R. at 33-34. When asked whether she had had any further contact with VA, or whether she had submitted any other statements or claims between 2002 and 2009, she testified that she believed she did, but she admitted that there was no documentation of this correspondence. R. at 35-36. Ms. Finley contends that when she contacted VA back in 2002 to file the burial benefits claim, VA should have automatically provided her all the requisite information and forms to file a claim for death pension benefits. R. at 40-41.
In a May 2018 post-hearing brief, the appellant, through her representative, contended that VA had not appropriately developed her claim. R. at 17. According to the appellant once the agency of original jurisdiction (AOJ) received a copy of the record confirming her marriage to the veteran, "this should have triggered the duty to assist." R. at 18. The appellant maintains that at the time she asserted her January 2002...
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