Citation Nr: 18124051
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 15-32 457
DATE:	August 3, 2018
REMANDED
Entitlement to service connection for cause of death is remanded.  

REASONS FOR REMAND
The Veteran served on active duty from May 1968 to June 1971. 
The appellant seeks entitlement to Dependency and Indemnity Compensation (DIC) and accrued benefits. The Board finds that remand is necessary to ascertain if the appellant may be recognized as the Veteran’s surviving spouse for VA purposes and to obtain an additional VA medical opinion. 
When a veteran dies, his or her surviving spouse may be eligible to receive VA death benefits. See 38 U.S.C. §§ 1121, 1310, 1541; 38 C.F.R. § 3.50(a). “Surviving spouse” status is a threshold requirement for VA death benefits, to include DIC benefits. The appellant has the burden to show status as a “surviving spouse” by a preponderance of the evidence, in order to have standing. See Colon v. Brown, 9 Vet. App. 104, 107-08 (1996). 
For VA purposes, a surviving spouse means a person whose marriage to the veteran meets the requirements of 38 C.F.R. § 3.1(j) and who was the spouse of the veteran at the time of the veteran’s death and: (1) 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 (2) except as provided in 38 C.F.R. § 3.55, has not remarried or has not since the death of the veteran and after September 19, 1962, lived with another person of the opposite sex and held himself or herself out openly to the public to be the spouse of such other person. 38 C.F.R. § 3.50(b). 
For VA purposes, marriage means a marriage valid under the law of the place where the parties resided at the time of the marriage, or the law of the place where the parties resided when the right to benefits accrued. 38 C.F.R. § 3.1(j).
In a May 2011 private hospital admission record, the appellant is listed as a spousal point of emergency contact at an address and telephone number different from that listed for the Veteran.  In a February 2012 private medical consult, the physician noted, presumably from the Veteran’s own reports, that the Veteran had been divorced five times, “but actually still lived with his fifth wife.” The Veteran died on June [redacted], 2013.  The death certificate lists the Veteran as “married” with the appellant’s first name but with a different last name.  
The marriage certificate submitted by the appellant indicated that she and the Veteran were married in May 1995. The appellant contends that she has been married continuously to the Veteran since 1995 and did not disclose in her application for Dependency and Indemnity Compensation, Death Benefits, and Accrued Benefits (VA Form 21-5341EZ) that there was a termination of their marriage prior to the Veteran’s death. Consequently, remand is necessary for the AOJ to verify if the appellant may be recognized as the Veteran’s surviving spouse for VA purposes because she was legally married to the Veteran or met the requirements of a common law marriage in the Veteran’s state of residence with evidence such as copies of tax filings, co-ownership of a home, or other evidence accepted by the state.  
38 U.S.C. § 5103A(a) requires VA to assist a claimant in obtaining a medical opinion or examination whenever such an opinion is “necessary to substantiate the claimant’s claim” and only excuses VA from making reasonable efforts to provide such assistance, if requested, when “no reasonable possibility exists that such assistance would aid in substantiating the claim.”  Wood v. Peake, 520 F.3d 1345, 1348-49 (Fed. Cir. 2008); see also DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008).  
In a September 2016 brief, the Veteran’s representative contends that the Veteran died from both metastatic melanoma and malignant peripheral nerve sheath sarcoma. The representative cited several supporting medical records including a April and May 2011 pathology reports, January 2012 post-mortem pathology report, and the consultation report noted above indicating that the peripheral nerve sheath sarcoma was of the skin of the forehead.  This is a complex medical matter that requires a competent opinion to determine the correct cause of death and whether the peripheral nerve sheath sarcoma of the skin of the forehead qualifies as a soft-tissue sarcoma listed in 38 C.F.R. § 3.309 (e) for which service connection on a presumptive basis from exposure to designated herbicide agents during the Veteran’s Vietnam service is available.    
The matter is REMANDED for the following action:
1. Undertake necessary development to verify if the appellant is eligible for recognition as the surviving spouse of the Veteran for purposes of receiving DIC benefits.
2. Provide access to the electronic claims file to a qualified physician and request that the physician review the claims file including the death certificate, pre- and post-mortem medical records, and the representative’s contentions in the September 2016 brief (posted in the electronic file as “third party correspondence” received on November 29, 2016). 
Request that the physician provide an opinion whether peripheral nerve sheath sarcoma of the skin of the forehead qualifies as one of the sarcoma listed in 38 C.F.R. § 3.309 (e) for which service connection on a presumptive basis from exposure to designated herbicide agents during the Veteran’s Vietnam service is available; and if so, whether that disease or any other disease was primary or contributing cause of death other than a secondary metastasis.  
 
J.W. FRANCIS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Dellarco, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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