Citation Nr: 1126620 Decision Date: 07/15/11 Archive Date: 07/21/11 DOCKET NO. 09-29 094 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Whether the appellant may be recognized as the surviving spouse of the Veteran for purposes of entitlement to VA benefits. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Millikan, Counsel INTRODUCTION The Veteran served on active military duty from May 1961 to April 1965. The Veteran died in May 2008 and the appellant alleges that she is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2009 administrative decision by the Boise, Idaho, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. The Veteran and the appellant were married in March 1997. 2. The Veteran filed for divorce in November 2006. The divorce proceeding was dismissed in June 2008. 3. The Veteran died in May 2008. 4. The weight of the evidence shows that the Veteran and the appellant were separated and living apart at the time of the Veteran's death, that the separation was by mutual consent and without the fault of the appellant, and without any misconduct or communication of a definite intent to end the marriage by the appellant. CONCLUSION OF LAW The criteria are met for recognition of the appellant as the surviving spouse of the Veteran for purposes of VA benefits. 38 U.S.C.A. §§ 101(3), 103 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.1(j), 3.50, 3.53 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Because the issue on appeal is granted in full, VA's statutory and regulatory duties to notify and assist are deemed fully satisfied. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010). Certain benefits, including Dependency and Indemnity Compensation, death pension, and accrued benefits, may be paid to a "surviving spouse" of the Veteran. 38 U.S.C.A. §§ 101(14), 1541, 5121(a) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.3, 3.5(a)(1), 3.23, 3.1000(a), (d) (2010). A "surviving spouse" is a person of the opposite sex (1) whose marriage to the Veteran was valid under the law of the place of residence at the time of the marriage or when the right to benefits accrued; (2) who was the spouse of a Veteran at the time of the Veteran's death; (3) who lived with the Veteran continuously from the date of marriage to the date of the Veteran's death (i.e. continuous cohabitation); (4) and who, except as provided in 38 C.F.R. § 3.55, has not remarried or has not since the death of the Veteran lived with another person of the opposite sex and held herself out openly to the public to be the spouse of such other person. 38 U.S.C.A. §§ 101(3), 103(c); 38 C.F.R. §§ 3.1(j) 3.50(b) (2010). Continuous cohabitation is generally required, with two exceptions: where the separation was due to the misconduct of, or procured by, the Veteran without the fault of the spouse, and where separation was by mutual consent and 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. 38 C.F.R. §§ 3.50(b)(1), 3.53(b) (emphasis added). The statement of the surviving spouse as to the reason for the separation will be accepted in the absence of contradictory information. 38 C.F.R. § 3.53(b). Under the first exception, the spouse must be free of fault in the initial separation, and the separation must have been procured by the Veteran or due to his misconduct. Gregory v. Brown, 5 Vet. App. 108, 112 (1993). The determination of fault, or the absence of fault, is based on an analysis of conduct at the time of separation. Although certain conduct subsequent to the time of separation may be relevant, the mere acts of seeking divorce and failing to reconcile are not relevant to the question of fault at the time of separation, particularly if the spouse has been physically and emotionally abused. Gregory, 5 Vet. App. at 112. Additionally, separation by mutual consent generally does not constitute desertion by a potential surviving spouse. Alpough v. Nicholson, 490 F.3d 1352, 1356-57 (Fed. Cir. 2007). "[T]he key is whether the reason for the separation did not show an intent on the part of the surviving spouse to desert the veteran." Alpough, 490 F.3d at 1356 (emphasis and citation omitted). Separation by mutual consent, however, would constitute desertion if the separation was induced by misconduct or communication of a definite intent to end the marriage by the surviving spouse. Alpough, 490 F.3d at 1358. The issue in this case is whether the appellant is the surviving spouse of the Veteran; but there is no dispute regarding any of the elements necessary to such a determination except for the requirement of continuous cohabitation. A marriage certificate indicates that the Veteran and the appellant were married on March [redacted], 1997. A death certificate indicates that the Veteran died on May [redacted], 2008; his marital status was noted as "married." No evidence indicates that the appellant remarried or has since the death of the Veteran lived with another person of the opposite sex and held herself out openly to the public to be the spouse of such other person. But the evidence also indicates that the Veteran did not live with the appellant prior to his death. Therefore, the only pertinent issue in determining entitlement to surviving spouse status is whether the appellant is exempt from the requirement of continuous cohabitation. A case history from the Idaho state court system indicates that the Veteran filed a divorce proceeding in November 2006 which was eventually dismissed in June 2008. At no point did the matter proceed to trial. It is thus undisputed that the Veteran and appellant were legally married under the state law of Idaho at the time of the Veteran's death. In a February 2007 claim for service connection, the Veteran checked the box for divorced when indicating his marital status. He gave his address as the VA medical center in Boise, Idaho. In a May 2007 Income-Net Worth Statement, the Veteran indicated he did not live with his spouse and was divorced due to irreconcilable differences. In a July 2008 statement and August 2009 substantive appeal, the appellant stated that they lived apart because he had to move into the VA hospital due to his terminal lung cancer. She stated that the Veteran's son had convinced him to file for divorce. She stated that they tried to stop the divorce, but that they could not because based on the advice of an attorney, the Veteran was not able to provide testimony or sign legal documents due to his medicated state. She stated that she and the Veteran were together when he died and that he continued to provide support to her until his death. In a statement submitted in September 2008, R.H., a friend of the Veteran, stated that the Veteran had terminal lung cancer. He reported that the Veteran's son, who he had not seen in 10 years, wanted the Veteran to come live with him while recovering from chemotherapy to meet grandchildren. R.H. asserted that while there, the Veteran was convinced to file for divorce and sign over things to his son. When the Veteran was getting better, he realized what had happened and returned to Boise and tried to end the divorce, but was unable to do so; the divorce was put on hold. R.H. asserted that the appellant visited the Veteran every day and that the Veteran made payments for her until he died. In another statement submitted in September 2008, M.P. stated that he hadn't even known about the pending divorce, that the appellant and the Veteran had acted as any other married couple. The Board finds that the evidence of record supports a finding that the appellant is the surviving spouse of the Veteran, because it indicates that the appellant and the Veteran mutually separated and lived apart and that the appellant did not intend to desert the Veteran. The Board notes that statements from the surviving spouse for the reasons for the separation are accepted in the absence of contradictory information. 38 C.F.R. § 3.53(b). Here, the appellant has stated that the Veteran was influenced by a family member to file for divorce. R.H.'s statement supports that assertion. The Veteran made statements on a VA form that they separated due to irreconcilable differences. The Board finds that this evidence indicates a separation by mutual consent. The appellant also asserted that she and the Veteran reunited prior to his death and had desired to stop the divorce proceedings, but were unable to do so. R.H. provided a statement that supported this assertion and indicated that the appellant visited the Veteran every day in the VA hospital. M.P. provided a statement that he did not even know a divorce proceeding had been filed and that they acted as a married couple. The Board finds that this evidence indicates that the appellant did not intend to desert the Veteran. Because the evidence indicates that the appellant and the Veteran were separated by mutual consent and the appellant had no intent to desert the Veteran, the appellant is excepted from the requirement of continuous cohabitation, and the Board finds that the appellant is a surviving spouse for VA benefits purposes. ORDER The appeal is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs