Citation Nr: 1219987 Decision Date: 06/07/12 Archive Date: 06/20/12 DOCKET NO. 09-13 185 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Whether the appellant is the surviving spouse of the Veteran for purposes of receiving dependency and indemnity compensation (DIC) benefits. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran had active service from December 1953 to March 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In February 2012, the appellant testified during a videoconference Board hearing before the undersigned. The record was held open for 60 days following the hearing to provide the appellant with additional time to submit lay evidence. In May 2012, the appellant submitted the lay evidence. Although she did not waive RO review of this evidence, as the claim is being denied because it lacks legal merit, the Board finds that neither a solicitation of a waiver nor a remand is needed as either would be an essentially redundant exercise and would result only in additional delay with no benefit to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). See also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). FINDINGS OF FACT 1. The Veteran and appellant were married in February 1956 and divorced in September 1983. 2. The appellant remarried sometime thereafter, separated in March 1999, and divorced in October 2006. 3. The Veteran died in October 1999, during the appellant's second marriage. CONCLUSION OF LAW The appellant is not entitled to recognition as the surviving spouse of the Veteran. 38 U.S.C.A. §§ 101(3), 5107 (West 2002); 38 C.F.R. §§ 3.50, 3.53 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act (VCAA) Before addressing the merits of the issue of whether the appellant is the surviving spouse of the Veteran, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.326(a) (2011). The Board observes that where the law, and not the evidence, is dispositive in a claim, as in this case, the VCAA is not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). See also Valiao v. Principi, 17 Vet. App. 229, 232 (2003); Smith v. Gober, 14 Vet. App. 227 (2000); Sabonis, 6 Vet. App. at 430. Analysis Governing law provides that DIC benefits may be paid to the surviving spouse of a veteran if certain requirements are met. 38 U.S.C.A. §§ 1304, 1310, 1311, 1318, 1541 (West 2002 & Supp. 2011). A "surviving spouse" is defined as 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 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. 38 U.S.C.A. § 101(3) (West 2002); 38 C.F.R. § 3.50 (2011). 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) (2011). 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 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) (2011). The Court of Appeals for Veterans Claims has determined that 38 U.S.C.A. §101(3) and 38 C.F.R. § 3.50(b)(1) set forth a two-part test to determine whether a spouse will be deemed to have continuously cohabited with the veteran when there has been a separation. Not only must the spouse be free of fault at the time of the separation, but it must be found that the separation "was due to the misconduct of, or procured by, the veteran." In assessing the reasons for a separation between a veteran and his or her spouse, fault or the absence of fault is to be determined based on an analysis of conduct at the time of the separation. Gregory v. Brown, 5 Vet. App. 108, 112 (1993). In this case, there is no dispute that the Veteran and appellant were married in February 1956 and divorced in September 1983. The record also shows that the appellant remarried sometime thereafter, separated in March 1999, and divorced in October 2006. The Veteran died in October 1999, during the appellant's second marriage. Thus, the appellant was not the Veteran's spouse at the time of his death. Although the appellant acknowledges that she and the Veteran were divorced at the time of his death, she contends that she still should be recognized as the surviving spouse because their divorce was due to the Veteran's misconduct, namely, verbal and physical abuse. In support of her claim, the appellant has submitted statements from family members and an acquaintance attesting to the abuse. The Board notes the appellant's contention but observes that it is misguided. The provisions pertaining to whether a separation was due to the fault of the veteran, without any fault on the part of the surviving spouse, are applicable in determining whether married parties continued to cohabit during their marriage. It presupposes that the parties were married. Thus, although a separation due to abuse, without termination of the marriage would entitle a claimant to benefits, in this case the Veteran and the appellant were divorced. Under the applicable laws and regulations discussed above, a divorce, even if due to abuse, would still preclude the claimant from benefits. These are the facts in this case. Although the appellant's divorce may well have been precipitated, at least in part, to abuse perpetrated by the Veteran, there is no basis under the circumstances of this case that affords a DIC award. While the Board is sympathetic to the arguments presented by the appellant, the law is very clear and precludes eligibility in this case. Where the law is dispositive, the claim should be denied because of the absence of legal merit. Sabonis, 6 Vet. App. at 430. Therefore, the Board has no alternative but to deny the appellant's appeal as she does not meet the legal criteria for recognition as the surviving spouse of the Veteran for purposes of receiving DIC benefits. ORDER Entitlement to recognition as the surviving spouse of the Veteran for purposes of receiving DIC benefits is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs