Citation Nr: 1301412 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 08-26 944 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to recognition as the Veteran's surviving spouse for VA death benefits purposes. REPRESENTATION Appellant represented by: Ronald C. Sykstus, Attorney at Law ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran had active service from January 1968 to January 1971. He died in April 2005 and the appellant contends that she is the surviving spouse. This appeal to the Board of Veterans' Appeals (Board) arose from a May 2006 administrative decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama determined that the appellant was not entitled to recognition as the Veteran's surviving spouse for purposes of entitlement to death benefits. The letter reportedly denied the appellant's claim for Dependency and Indemnity Compensation (DIC), death pension, and accrued benefits. Additionally, the letter accompanied a May 2006 rating decision that denied service connection for the cause of the Veteran's death. In May 2007, the appellant filed a notice of disagreement (NOD) with the denial of death benefits and the determination that she was not the surviving spouse of the Veteran. The RO issued a statement of the case (SOC) August 2008 that limited the issue to entitlement to death benefits as the surviving spouse of the Veteran. The appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in April 2009. Subsequent to the August 2009 statement of the case, the appellant submitted new evidence in support of her claim, and in July 2010, the appellant's representative waived RO review of such additional evidence. 38 C.F.R. §§ 20.800, 20.1304 (2012). In an August 2010 decision, the Board denied the appellant's status as the Veteran's surviving spouse. Subsequently, the appellant filed a timely appeal of the Board decision, and in a December 2011 Order, pursuant to a Joint Motion for Remand, the Court of Appeals for Veterans' Claims (Court) vacated the Board's decision and remanded the matter for compliance with the terms of the Joint Motion for Remand. FINDINGS OF FACT 1. The Veteran and the appellant were married in October 2000. 2. The Veteran died in April 2005. Prior to his death, neither the Veteran nor the appellant obtained a dissolution of marriage. 3. The weight of the probative evidence of record shows that the Veteran and the appellant were separated and living apart at the time of the Veteran's death, and that the separation resulted from misconduct on the part of the Veteran without the fault of 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 death benefits. 38 U.S.C.A. §§ 101(3), 103, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1(j), 3.50, 3.53, 3.159 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Given the favorable disposition of the issue of entitlement to recognition as surviving spouse for the purpose of establishing eligibility for VA death benefits purposes, the Board finds that all notification and development action needed to fairly adjudicate this aspect of the appeal has been accomplished. II. Criteria & Analysis The surviving spouse of a deceased veteran who died from a service-connected or compensable disability may be eligible for dependency and indemnity compensation benefits. 38 U.S.C.A. §§ 1304, 1310, 1311, 1318, 1541 (West 2002). A spouse is a person of the opposite sex whose marriage to the Veteran meets the requirements of 38 C.F.R. § 3.1(j). 38 C.F.R. § 3.50(a) (2012). Marriage means a marriage valid under the law of the place where the parties resided at the time of the marriage, or the law of the place where the parties resided when the right to benefits accrued. 38 U.S.C.A. § 103(c) (West 2002); 38 C.F.R. § 3.1(j) (2012). To be recognized as the Veteran's "surviving spouse" for the purpose of establishing entitlement to VA benefits, the appellant must be 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 and has not remarried. 38 U.S.C.A. § 101(3) (West 2002); 38 C.F.R. § 3.50(b)(1) (2012). The requirement of continuous cohabitation will be considered as having been met when the evidence shows that any separation was due to misconduct of, or procured by, the Veteran without the fault of the surviving spouse. 38 C.F.R. § 3.53(a) (2012). 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. 38 C.F.R. § 3.53(b) (2012). The statement of the surviving spouse as to the reason for separation will be accepted in the absence of contradictory information. 38 C.F.R. § 3.53(b) (2012). Here, it is undisputed that the Veteran and appellant were legally married in October 2000, under state law of Alabama at the time of the Veteran's death. The Board notes that in the 'Remarks' section of a VA Form 21-526, Veteran's Applications for Compensation and/or Pension, dated in June 2003, the Veteran stated that he did not consider himself married and he did not want the "lady I married to be considered as my spouse;" however, he checked the 'Married' box and listed appellant as his spouse. He stated that he planned to file for divorce as soon as possible, but did not have the finances to do so. No divorce had been finalized prior to his April 2005 death and it did not appear that divorce proceedings were ever even initiated by either the appellant or the Veteran. A January 2004 VA treatment record described the Veteran as "now separated." In addition, there was no evidence of record suggesting that the appellant remarried or 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. Despite the Veteran's certificate of death, which reflects that he was divorced at the time of his death, the appellant submitted an amendment to the Certificate of Death that listed the Veteran as married and the appellant as the surviving spouse. Thus, resolving all reasonable doubt in the appellant's favor, the Board finds that she was the Veteran's lawful spouse at the time of his death in April 2005. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Therefore, the only remaining issue pertinent in determining entitlement to surviving spouse status is whether the appellant lived with the Veteran continuously from the date of marriage to the date of the Veteran's death, per the requirement of continuous cohabitation under § 3.50(b)(1). While the appellant does not claim continuous cohabitation with the Veteran during the marriage, the appellant asserts that the separation was due to the misconduct of, or procured by, the Veteran without the fault of the surviving spouse. On May 2005 VA Form 21-534, Application for Dependency and Indemnity Compensation, Death Pension, and Accrued Benefits by a Surviving Spouse, the appellant checked the 'No' box as to whether she continuously lived with the Veteran from the date of marriage to date of death. The appellant stated that they separated in December 2004 because he was "really abusive and only wanted to be married when he wasn't running around and when he wanted something then he would come home." In a statement received in September 2006, the appellant stated that she married the Veteran in October 2000, and after nine months things started to get bad. She wasn't able to talk to anyone on the phone or go outside of the house. If they went out and a male would pass by her, the Veteran assumed she knew him and was having an affair. She indicated that the Veteran did not trust her and began to harass her, for which she sought the assistance from the Court and they separated. In support of her contentions, the appellant submitted a 'Case Action Summary' from a Court listing the Veteran as the defendant which revealed that he was charged with harassment. He was arrested in August 2001, and in October 2001, the Veteran appeared before the court and he was to have no contact with the complainant for six months. The Bench notes reported that the Defendant was to allow the complainant to go to the marital residence and retrieve her belongings. Although the name of the complainant was not listed, it is presumed that it was the appellant. In the September 2006 statement, the appellant indicated that after the initial separation, she got back together with the Veteran. In May of 2004, her brother passed away and she went to the funeral services in Florida. She reported that her mother passed away preceding her brother's funeral, which required her to stay in Florida for a couple of weeks to take care of family matters. When she returned from Florida, the Veteran was already seeing other women. During this time, the appellant's grandmother had a stroke and she stayed with her to take care of her. She did not know that the Veteran went in the hospital or that he died until she read about it in the newspaper. She indicated that she did not leave the Veteran for someone else or move in with another guy. In another statement received in September 2006 from the appellant, she stated that during their marriage, the Veteran had several affairs and she didn't really know what was going on between the Veteran and his ex-wife. She also reported that she and the Veteran had a rocky marriage due to his abuse, heavy drinking, and affairs. They separated several times. She stated that she had several deaths in her family and had to go live in Florida. In a lay statement from B.O. received in September 2006, she stated that the Veteran and the appellant were married and together for nine and a half months when they first split up and she moved in with her mother for two months, and then they got back together. B.O. stated that the appellant tried to work it out and stayed with the Veteran for four and a half years. In May 2007 correspondence, the appellant reported that the last time she was separated from the Veteran was only a short time before he died and that they had spent time together approximately a month or so before his death. In a lay statement received in April 2008 from S.L.S., she stated that the Veteran and the appellant were married in October 2000 and separated in 2002. The appellant moved in with her grandmother (the appellant's mother), and the Veteran and appellant tried to work on their marriage without success. In a lay statement from S.A.B., she stated that the appellant and the Veteran were married for a little over a year and began to argue, and the appellant stayed with her mother. In a lay statement received in April 2008 from D.A., she stated that the appellant and the Veteran were married in October 2000, and separated in 2002 and the appellant moved in with her mother. The appellant submitted documentation pertaining to the Veteran's criminal record from the 1990's. In an attached statement, the appellant stated that it was not her fault that she and the Veteran were separated, but because he was continuously abusive. She stated that she was not aware that he had a criminal record and was lucky that he did not kill her. On the Veteran's June 2003 VA Form 21-526, the Veteran stated that he and his wife stayed together for approximately three months, then separated and she moved in immediately with another man. However, these statements are not supported by any other probative evidence of record. The Veteran also stated that he had not had any contact with the appellant in over a year, however, the appellant submitted a statement that was handwritten by the Veteran and dated by him on "Thur Aug 29" (thus in 2002). The correspondence was addressed to the appellant and her mother. The correspondence stated that the Veteran was getting ready to move and he found some items that belonged to the appellant and her mother. He stated his desire to be friends with both the appellant and her mother, to stop being angry with each other, and that he would like to speak to them if he saw them again. He apologized for "a lot of things" and again requested to be friends. He stated that he still loved them. He ended the correspondence stating that he would see or talk to them all later, and signed the correspondence with his first name. VA treatment records generated at the time of his death reflect that family members, including his former spouse, G.D., were present at the time of his death. In April 2005, G.D. filed an 'Application for Burial Benefits.' Although the appellant was not present at the time of the Veteran's death, she indicated that she was taking care of her sick grandmother at that time and didn't know that the Veteran went to the hospital or that he died until she read about it in the paper. She reported that her grandmother died shortly after the Veteran passed away. A review of the record reflects that the Veteran died suddenly and unexpectedly post open reduction and internal fixation of the left calcaneal fracture. A funeral program also reflects that the appellant's grandmother passed away a couple of months after the Veteran died. Although it is unclear how often the appellant and the Veteran communicated or would get back together with each other, the appellant asserted that their separation was due, in part, to the Veteran's abuse and drinking habits. The record confirms that the Veteran was arrested in August 2001 and charged with harassment around the same time the appellant allegedly initially separated from the Veteran and claimed that he was harassing her. A January 2004 VA treatment record also included a positive alcohol screening test and described the Veteran as a "drinker." At that time, he reported that he drank three to four drinks on a typical day that he was drinking two to four times per month. In the absence of contradictory information, and resolving all reasonable doubt in the appellant's favor, the Board finds that the separations were due to the misconduct of, or procured by, the Veteran without the fault of the appellant. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. Therefore, the appellant is entitled to recognition as the surviving spouse of the Veteran. ORDER Recognition as the Veteran's surviving spouse for VA death benefits purposes is granted. ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs