Citation Nr: 1124084 Decision Date: 06/24/11 Archive Date: 06/29/11 DOCKET NO. 09-00 604 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to recognition as the Veteran's surviving spouse for purposes of VA benefits. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from August 1973 to September 1975. He died in November 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 administrative decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A Travel Board hearing was held at the RO in October 2010 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. FINDINGS OF FACT 1. The Veteran and the appellant were married in the state of Florida in August 1996. 2. The Veteran was incarcerated in November 1996 following his arrest on a charge of aggravated battery (domestic violence) against the appellant. 3. The Veteran pleaded no contest to the charge of aggravated battery in November 1997 and was sentenced to a term of 35 months and 15 days in Florida state prison with a credit of 323 days for time incarcerated prior to imposition of this sentence; he was released from state prison in July 1999 and moved to Pennsylvania. 4. The Veteran and the appellant did not live together between his arrest in November 1996 and his death in November 2006. 5. The appellant's separation from the Veteran in November 1996 was due to the misconduct of, or procured by, the Veteran without the fault of the appellant. CONCLUSION OF LAW The requirements for recognition as the Veteran's surviving spouse for the purpose of establishing eligibility for VA benefits have been met. 38 U.S.C.A. §§ 101, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.1, 3.50, 3.52, 3.53 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board grants the appellant's claim for recognition as the Veteran's surviving spouse for purposes of VA benefits, which constitutes a complete grant of her claim. Therefore, no discussion of VA's duty to notify or assist is necessary. The appellant contends that she is entitled to recognition as the Veteran's surviving spouse. She specifically contends that, although she did not cohabit continuously with the Veteran between the date of their marriage and the date of his death, the reason for their separation in November 1996 was that the Veteran had committed aggravated battery (domestic violence) against her, was incarcerated, and subsequently was convicted and sentenced to prison for this crime. She also specifically contends that she never contacted the Veteran after his incarceration in November 1996 because she feared for her life and for the life of her daughter (who was not the Veteran's biological child). The term "surviving spouse" means a person who was the spouse of a 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) 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. A spouse is a person whose marriage to the Veteran meets the requirements of 38 C.F.R. § 3.1(j). 38 C.F.R. § 3.50(a). For VA benefits purposes, a marriage means a marriage valid under the law of the place where the parties resided at the time of marriage, or the law of the place where the parties resided when the right to benefits accrued. 38 C.F.R. § 3.1(j). Continuous cohabitation from the date of marriage to the date of the Veteran's death is met where the evidence shows that any separation between the appellant and the Veteran 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). The statement of the surviving spouse regarding the reason for the separation from the Veteran will be accepted in the absence of contradictory information. Due weight will be given to findings of fact made in court decisions issued during the Veteran's life on issues subsequently involved in determining whether the requirement of continuous cohabitation has been met. 38 C.F.R. § 3.53(b). The Board finds that the evidence supports recognizing the appellant as the Veteran's surviving spouse for VA purposes. It is undisputed that the appellant and the Veteran were married in August 1996. In November 1996, the Veteran was arrested and charged with committing aggravated battery (domestic violence) against the appellant. A review of the November 1996 police report indicates that the Veteran had attempted to run over the appellant with their car by driving up behind her, striking her, and knocking her in to a neighbor's yard. The appellant was taken to the hospital where she was treated for a fractured left ankle. She also stated to the police that she was afraid of her husband. Witness statements obtained as part of the police investigation of this incident confirm the appellant's report that the Veteran had attempted to run over her with their car. The appellant obtained a temporary protection order against the Veteran following this incident. The Veteran subsequently plead nolo contendere (no contest) to 1 count of aggravated battery in November 1997 and was sentenced by a Florida state court to serve 35 months and 15 days with a credit of 323 days for time incarcerated prior to imposition of this sentence. While the Veteran was incarcerated, the appellant submitted medical evidence showing the extent of the injuries she sustained when her husband had attempted to run her over with their car in November 1996. She also submitted medical evidence from Gwendolyn M. Mercer, M.D., whom she identified as her treating psychiatrist, including a letter dated in May 1998 in which Dr. Mercer stated that the Veteran "remains a real and constant danger to both [the appellant] and her daughter." Dr. Mercer "strongly recommended" that the appellant obtain a restraining order against her husband (the Veteran). The Veteran also submitted multiple lay statements during his incarceration concerning his marriage to the appellant. He alleged that the appellant had committed adultery while he was incarcerated. He also contended that he was in the process of obtaining a divorce from the appellant but had been unable to locate her in order to serve her with divorce papers. Following the Veteran's release from incarceration in Florida state prison in July 1999, he moved to Pennsylvania and lived with his mother in her home. In multiple lay statements submitted by the Veteran and by the appellant after his release from state prison, they asserted that they had no contact with each other and were separated. It appears that both the appellant and the Veteran filed cross-petitions for divorce in Florida state court after his release from incarceration. The Veteran again alleged that he had been unable to serve the appellant with divorce papers because he could not locate her. It also appears that the divorce petitions were dismissed in September 2001 after the Veteran failed to appear for several hearings in this case. When she filed her claims with VA in September 2007, the appellant contended that she had been married to the Veteran between 1996 and the date of his death. She also conceded that she had not cohabited continuously with the Veteran due to his mental illness. The Board acknowledges that the Veteran's assertions, made prior to his death in November 2006, that he and the appellant had not lived together continuously since their marriage. The evidence clearly shows, however, that the separation between the Veteran and the appellant which occurred in November 1996 and continued until the date of the Veteran's death in November 2006 was the result of the Veteran's misconduct and the appellant was without fault. The Veteran attempted to run over the appellant with their car in November 1996 and pleaded no contest to a charge of aggravated battery (domestic violence) in November 1997. He was incarcerated until July 1999 and then moved to Pennsylvania and made no attempt to resume his former marriage to the appellant. Given the circumstances which prompted her separation from the Veteran in November 1996, it is not surprising that the appellant did not want to continue their prior marriage after his release from state prison. Although the Board acknowledges that both the Veteran and the appellant filed for divorce after his release from state prison, their divorce petitions were dismissed and they remained married until the Veteran's death. The Board finds that the separation between the Veteran and the appellant which occurred in November 1996 clearly was the result of the Veteran's misconduct and the appellant was not at fault. The appellant's statements regarding the reasons for her separation from the Veteran in November 1996 are not contradicted by any credible information in the record. The only information which contradicts the appellant's statements as to the reasons for her separation from the Veteran consist of his largely self-serving statements made during and after his incarceration for committing aggravated battery against the appellant; in these statements, the Veteran alleges marital infidelity and VA benefits fraud by the appellant. None of the Veteran's statements contradict his no contest plea in November 1997 to 1 count of aggravated battery against the appellant, a plea and conviction which arose from the serious domestic violence incident that prompted the appellant's separation from him in November 1996. The Veteran's statements also do not contradict the March 1998 statement by the appellant's treating psychiatrist that he was and remained "a real and constant danger" to the appellant and her daughter. In summary, the Board finds that the appellant should be recognized as the Veteran's surviving spouse for VA purposes. ORDER Entitlement to recognition as the Veteran's surviving spouse for purposes of VA benefits is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs