Citation Nr: 0815199 Decision Date: 05/08/08 Archive Date: 05/14/08 DOCKET NO. 06-18 366 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Whether the appellant is entitled to be recognized as the surviving spouse for VA death benefits purposes. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant and C.S. (witness) ATTORNEY FOR THE BOARD S. Finn, Associate Counsel INTRODUCTION The veteran served on active duty from May 1973 to December 1973. The veteran died in November 2002. The appellant is advancing this appeal as the veteran's widow. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a January 2005 administrative decision of the St. Louis, Missouri Department of Veterans Affairs (VA) Regional Office (RO). In March 2008, the appellant, accompanied by her representative and a witness, testified at a hearing before the undersigned Acting Veteran's Law Judge. A transcript of the hearing has been associated with the claims file. FINDINGS OF FACT 1. The marriage certificate of the appellant and the veteran indicate that they were married in September 1988. 2. The veteran's death certificate indicates that he died in November 2002. 3. The appellant has shown at least as likely as not that the parties lived together continuously from the date of their marriage to the date of the veteran's death. CONCLUSION OF LAW Resolving all reasonable doubt in the appellant's favor, the criteria for recognition of the appellant as the veteran's surviving spouse for DIC, death pension benefits, and accrued benefits purposes are met. 38 U.S.C.A. §§ 1102, 1304, 1541 (West 2002); 38 C.F.R. § 3.54 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Board has considered whether the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126, which became effective on November 9, 2000, is applicable to this claim. However, the provisions of the VCAA have no effect on an appeal, such as the instant appeal, where the law, and not the underlying facts or development of the facts, is dispositive in a matter. Wensch v. Principi, 15 Vet. App. 362, 268 (2001) ("[w]hen there is extensive factual development in a case, reflected both in the record on appeal (ROA) and the [Board's] decision, which indicates no reasonable possibility that any further assistance would aid the appellant in substantiating [her] claim, this Court has concluded that the VCAA does not apply."); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994), Dela Cruz v. Principi, 15 Vet.App. 143, 149 (2001); Manning v. Principi, 16 Vet. App. 534, 542-543 (2002). II. Factual and Legal Analysis VA death benefits may be paid to a surviving spouse who was married to the veteran: (1) one year or more prior to the veteran's death, or (2) for any period of time if a child was born of the marriage, or was born to them before the marriage. 38 U.S.C.A. §§1102, 1304, 1541; 38 C.F.R. § 3.54. The term "surviving spouse" means a person of the opposite sex who was the spouse of the veteran at the time of the veteran's death, and 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 in the case of temporary separations) and who has not remarried or (in cases not involving remarriage) has not since the death of the veteran lived with another person and held himself or herself out openly to the public to be the spouse of such other person. 38 U.S.C.A. §101(3); 38 C.F.R. §§ 38 C.F.R. § 3.1(j), 3.50(b), 3.53. The requirement that there must be continuous cohabitation from the date of marriage to the date of death of the veteran will be considered to have 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. 38 C.F.R. § 3.53(a). 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. Id. The statement of the surviving spouse as to the reason for the separation will be accepted in the absence of contradictory information. 38 § 3.53(b). 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 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. Id. The surviving spouse's fault or absence of fault for separation, for purposes of determining entitlement to surviving spouse benefits, is to be determined based on analysis of conduct at the time of separation. Gregory v. Brown, 5 Vet. App. 108, 112 (1993). The record reveals that the veteran and the appellant were married in September 1988. In July 1989, the veteran filed for non-service connected disability pension benefits (Form 21-526) for a left hand condition and listed the appellant as his spouse. On the Marital and Dependency Information Section of this application, the veteran stated that he was married and that they lived together. He further wrote "N/A" when asked about whether he and his spouse were separated. In August 1997, the veteran filed for compensation and pension benefits for a left ankle condition. On the Marital and Dependency Information Section of this application, the veteran stated that he was married, but that they did not live together and were separated. He further wrote that the reasons for separation were "health problems" and "marital problems." He stated that his wife's present address was "unknown for her own personal reasons-she [did] not reveal to [him] her address." A VA examiner, however, indicated that the veteran had "a stable marriage" on a mental status examination dated in April 1998. The veteran subsequently indicated otherwise on a non-service connected disability pension application (Form 21-526) for benefits dated in June 1999. Specifically, the veteran stated he was married, but that they did not live together and were separated due to marital problems. On his mental status examination dated January 2000, the examiner noted that the veteran "ha[d] been married for 11 years" and "seems happy in his marriage." However, on a Form 21-0517-1, an Improved Pension Eligibility Verification Report (Veterans With Children), filed in June 2000, the veteran stated that he was married, but not living with his spouse and that they separated in January 1997. In a VA outpatient treatment report dated March 2002, an examiner noted that the veteran was satisfied with his family and social status. Specifically, the veteran reported that his "living arrangement over the past three years has been to live with his sexual partner alone, and that he is satisfied with this arrangement." The veteran also stated that someone contributes to the majority of his financial support and that he has one person who is dependent on him for financial support. The examiner also stated that the information provided by the veteran was not significantly distorted by misrepresentation and that the patient fully understood the questions. The veteran died in November 2002, as indicated by the death certificate. VA Form 119 reflects that the appellant reported his death a day after. The appellant filed a VA Form 21-534, "Application for Dependency and Indemnity Compensation, Death Pension and Accrued Benefits By a Surviving Spouse or Child" in June 2004. On that form, the appellant identified herself as the veteran's surviving spouse and indicated that she had married the veteran in St. Louis in September 1988 and that the marriage was terminated in November 2002 by the veteran's death. The appellant also stated that she continuously resided with the veteran from the date of marriage until the date of his death, as indicated by VA Form 21-534 and her September 2004 written statement. In support of her application, the appellant submitted a copy of their marriage certificate, the veteran's death certificate, tax return work sheets from 2002, written statements and testimony. The works sheets for the tax returns from 2002 indicated that the filing status was married filing joint. Written statements from friends, M.L. and J.R., attested to the fact that they knew the veteran and the appellant for over a decade and that to the best of their knowledge they never filed for a divorce or separated. Written statements from her children, J.H. and M.H., attested to the fact that their mother and their father lived together. Specifically, M.H. stated that throughout his life the veteran resided with his mother. In a March 2008 hearing, the appellant testified that she and her husband continuously resided together from the time they were married to the date of the veteran's death. She stated that they were not separated at any time. She speculated that if her husband told the VA that they were not living together, it was because her husband did not want to claim her income for fear of a reduction in his pension benefits. She further testified that she had no knowledge of her husband making these statements. The appellant also testified that the veteran was referring to her when he told the examiner on the March 12, 2002 psychological history report that someone contributed to the majority of his financial support. The appellant's witness, C.S., testified that she knew both the veteran and the appellant throughout their entire marriage and that they lived in the same household throughout their entire marriage. C.S. stated that she visited their home frequently. Although typically a deceased veteran's statements regarding his marital relationship during his lifetime are significantly probative, the evidence of record reveals that the veteran has been inconsistent with his statements regarding continuous cohabitation. Therefore, the Board attaches more probative value to the veteran's statements to the VA examiners as oppose to the statements he made on his non-service connected pension disability applications. See Hayes v. Brown, 5 Vet. App. 60, 69 (1993); Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence"); see also Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Further, the Board finds it significant that the appellant reported the veteran's death to the VA a day after he died, as indicated by the VA Form 119 dated November [redacted], 2002. Further, the appellant also arranged for the veteran's burial and applied for burial benefits on November 29, 2002 using the same address that the veteran had used for his most recent pension application. Combining the testimony of the appellant, her actions shortly after the veteran's death, and the witness' testimony regarding continuous cohabitation from the date of marriage to the date of the veteran's death (and the inability on the part of the VA to clarify the veteran's inconsistent statements), the balance of positive and negative evidence is at the very least in relative equipoise. The appellant is entitled to the "benefit of the doubt" when there is an approximate balance of positive and negative evidence (i.e. where the evidence supports the claim or is in relative equipoise, the appellant prevails). 38 U.S.C.A. 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the benefit on appeal is granted. ORDER Entitlement to recognition of the appellant as the veteran's surviving spouse for purposes of receiving VA death benefits is granted. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs