Citation Nr: 0811558 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 06-20 225 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Whether the appellant has eligibility for Department of Veterans Affairs benefits as the veteran's surviving spouse. WITNESSES AT HEARING ON APPEAL Appellant, her daughter, and her grandson. ATTORNEY FOR THE BOARD Michael Martin, Counsel INTRODUCTION The veteran had active service from January 1993 to January 1946. This matter came before the Board of Veterans' Appeals (Board) on appeal from an administrative decision of December 2004 by the Department of Veterans Affairs (VA) Jackson, Mississippi, Regional Office (RO). In the decision, the RO concluded that the appellant was not entitled to VA benefits as the veteran's surviving spouse because she had not continuously cohabited with the veteran. FINDINGS OF FACT 1. The appellant and the veteran were married in September 1977. 2. The veteran died in March 2004. 3. The appellant did not live continuously with the veteran from the date of their marriage to the date of the veteran's death. 4. The initial separation in 1983 was due to the misconduct of, or procured by, the veteran without the fault of the appellant. 5. There is also evidence of a subsequent reconciliation which was terminated on the basis of health reasons and did not show an intent on the part of the surviving spouse to desert the veteran. CONCLUSION OF LAW The continuous cohabitation requirement for establishing the eligibility of the appellant to VA benefits as the surviving spouse of the veteran has been met. 38 U.S.C.A. § 101(3) (West 2002); 38 C.F.R. § 3.53 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant contends that the RO made a mistake by concluding that she is not eligible for benefits as the veteran's surviving spouse. She asserts that her separations from the veteran were necessitated by his violent outbursts. She presented testimony to that effect during a hearing held at the RO in November 2006. She also reported in a written statement dated in November 2004 that the veteran had stayed with her at her residence approximately four months prior to being admitted to a nursing home. She reported that they then separated again due to his failing health and need for continuing care. 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 evidence supports the appellant's claim for eligibility for VA benefits as the veteran's surviving spouse. Under 38 U.S.C.A. § 101(3), 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 from the date of marriage until 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 fault of the surviving spouse. 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 that any separation was due to the misconduct of, or procured by, the veteran without the fault of the surviving spouse. Temporary separations which ordinarily occur, including those caused for the time being through fault of either party, will not break the continuity of the cohabitation. 38 C.F.R. § 3.53(a). The statement of the surviving spouse as to the reason for the separation will be accepted in the absence of contradictory information. If the evidence establishes that the separation was by mutual consent and that the parties lived apart for purposes of convenience, health, business, or any other reason which did not show an intent on the part of the surviving spouse to desert the veteran, the continuity of the cohabitation will not be considered as having been broken. State laws will not control in determining questions of desertion; however, due weight will be given to findings of fact in court decisions made during the life of the veteran on issues subsequently involved in the application of this section. 38 C.F.R. § 3.53(b). Some of the facts in this case are not in dispute. The appellant and the veteran were married in September 1977. The veteran died in March 2004. Although the appellant initially claimed to have lived continuously with the veteran from the date of marriage until the date of death, the Board finds that the preponderance of the evidence establishes that an extended separation occurred. In this regard, the Board notes that a Declaration of Marital Status from submitted by the veteran in December 1983 reflects that the veteran reported that he and his wife had separated. He indicated that it was because they could not get along. Similarly, the veteran subsequently also stated in numerous Improved Pension Eligibility Verification Reports that he was married but not living with his spouse. In light of the separation which occurred, the appellant may only be recognized as the veteran's surviving spouse if the separation was due to the misconduct of, or procured by, the veteran, without fault of the surviving spouse. See 38 U.S.C.A. § 101(3). The United States Court of Veterans Appeals (Court) has held in Gregory v. Brown, 5 Vet.App. 108, 112 (1993), that: The language of 38 U.S.C.A. § 101(3) and 38 C.F.R. § 3.50(b)(1) does not indicate that the without-fault requirement is a continuing one. Rather, under this language, fault or the absence of fault is to be determined based on an analysis of conduct at the time of the separation. Certain conduct subsequent to the time of separation may be relevant in an appropriate case with respect to the question of fault at the time of separation, but the mere acts of seeking divorce and failing to reconcile are not in and of themselves relevant to such question, and, standing alone, do not constitute evidence of fault at the time of separation. Certainly, if a spouse has been physically and emotionally abused and separates from the abuser, the abused spouse's acts of initiating a divorce and refusing to reconcile would not be competent evidence to demonstrate fault on the part of the abused spouse at the time of the separation. Under 38 C.F.R. § 3.53, the statement of the surviving spouse as to the reason for the separation will be accepted in the absence of contradictory information. In this case, the appellant contends that the separation occurred because the veteran became violent and she feared for her own safety and the safety of her children. Her account has been corroborated by witness statements from her relatives and acquaintances. For example, the appellant's son stated in a letter dated in November 2006 that the veteran and his mother had a rocky relationship and would constantly breakup and get back together. In a letter dated in March 2007, a local constable reported that it was his job to keep the peace in the community, and that during the years from 1982 through 2002, he was often called to scenes where the veteran was threatening and shooting. He further stated that most people in the community found the veteran to be quite intimidating, especially his wife (the appellant). The appellant has also submitted law enforcement documents showing that the veteran had been charged on several occasions with offenses such as carrying a concealed weapon, disturbing the peace, discharging a firearm in the city limit, and murder. Although none of the incidents were noted to involve violence against the appellant, the arrests and charges tend to corroborate the appellant's claim of fearing for her safety. Therefore, in accordance with the regulation cited above, the Board accepts the appellant's statement as being true. The Board notes that the evidence which is of record does not contain persuasive evidence which contradicts the appellant's account of the reason for the separation. The Board has noted that in her previous written statement in November 2004, she said that the separation in the early 80's occurred after a period in which she had been driven to drinking. However, even if that admission suggests the possibility that she was partially at fault in the initial separation, the same statement also includes an account of a reconciliation shortly before the veteran's death which continued until he was placed in a nursing home due to medical necessity. Also, in a letter dated in November 2005, the appellant reported that after the veteran was placed in a nursing home, she remained by his side continuously until his demise. The appellant's account is corroborated by a witness statement dated in March 2005 from a retired principal which indicates that the couple remained married until his death, and were separated prior to his death due to the veteran's physical and mental conditions which caused him to be placed into a nursing facility. In summary, the Board finds that the there is evidence of a subsequent reconciliation which was terminated on the basis of health reasons and did not show an intent on the part of the surviving spouse to desert the veteran. Accordingly, the appellant meets the continuous cohabitation requirements for recognition as the veteran's surviving spouse for purposes of eligibility for VA benefits. ORDER The appeal with respect to whether the appellant meets the requirements eligibility for VA benefits as the veteran's surviving spouse is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs