Citation Nr: 1314129 Decision Date: 04/29/13 Archive Date: 05/15/13 DOCKET NO. 10-38 928 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to recognition as the Veteran's surviving spouse for purposes of VA benefits. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1946 to March 1947. He died in October 1975. The appellant asserts that she is the surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In February 2012, the appellant testified at a personal hearing before the undersigned. A transcript of this hearing was prepared and associated with the claims file. In April 2012, the Board denied the appellant's appeal. Thereafter, the appellant appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In January 2013, the parties filed a Joint Motion for Remand. By subsequent Order, the Court granted the motion and remanded the matter for compliance with the instructions therein. The Virtual VA electronic claims file has been reviewed; a review of the documents in such file reveals that it does not contain any documents pertinent to the issue on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran and the appellant were married in May 1949. 2. The Veteran died in October 1975; prior to his death, neither the Veteran nor the appellant ever obtained a dissolution of their marriage to each other. 3. The appellant and the Veteran separated several times during his lifetime, but resolving reasonable doubt in the appellant's favor they reconciled before his death. 4. The appellant and the Veteran lived in separate houses at the time of his death due to the misconduct of the Veteran and without fault on the part of the appellant. CONCLUSION OF LAW The appellant is recognized as the surviving spouse of the Veteran for the purpose of entitlement to VA benefits. 38 U.S.C.A. §§ 101, 103, 1102, 1304 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.5, 3.50, 3.52, 3.53, 3.205 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. In light of the fact that the Board allows the current claim at issue, discussion of the notice and assistance requirements of the VCAA and a detailed explanation of how VA complied with the Act is unnecessary. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). Analysis The term "surviving spouse" means 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 the 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; and (4) who, except as provided in 38 C.F.R. § 3.55, has not remarried or has not since the death of the veteran (and after September 19, 1962) lived with another person of the opposite sex and held herself out openly to the public to be the spouse of such other person. See 38 U.S.C.A. §§ 101(3), 103(c); 38 C.F.R. § 3.50(b). Elements one, two, and four of the surviving spouse definition are clearly satisfied in the case at hand. The Veteran and the appellant were lawfully married in May 1949, and there is no evidence of record indicating that they had divorced before the Veteran's death. The appellant has neither lived with nor openly held herself out as married to another individual since the death of the Veteran. At issue in this case is the third element, continuous cohabitation. 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). 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 an 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). Following a thorough review of the evidence of record, the Board finds that the continuous cohabitation requirement has been satisfied in this case. The appellant has submitted numerous written statements and provided testimony in a February 2012 Board hearing in which she asserts, essentially, that she and the Veteran had two periods of separation, one in approximately 1958 and one in approximately 1968. While the length of these separations is unclear, she has stated that in the years immediately prior to the Veteran's death she and her husband had reconciled. The appellant testified that they did not live in the same household during this time due to the Veteran's heavy drinking and belligerent behavior. But the appellant continued to cook for the Veteran and otherwise function in the role of his wife until the night of the Veteran's death. The evidence confirms that the appellant did not always cohabitate with the Veteran. In an October 1960 letter, the Veteran stated that he had been separated from his wife since 1957. In an October 1960 letter from a child welfare unit, a social worker stated that the appellant had "deserted" and had not been in contact with her children since 1958. The Veteran indicated he was widowed on a February 1962 Income-Net Worth and Employment Statement, but in an October 1966 Income-Net Worth and Employment Statement he listed himself as "separated." In an April 1967 VA treatment record, the Veteran is described as "separated." In June 1968 the appellant wrote to VA stating that she and the Veteran were "separated and living apart" and requested apportionment of his VA benefits. Regarding the periods of separation, the appellant submitted a statement in September 2009 asserting that the reason for these separations was because she "could not take all the drinking every night and coming home[] want(ing) to fight." In May 2012, after the April 2012 Board decision, the appellant submitted an additional statement which further explained that their first separation occurred because "all of a sudden he began to drink more and more," after which he started to beat her, causing her to have to call the police. They later reconciled until "one night he got real drunk and started beating me up for no good reason he cut me on my arm with a razor." This latter injury reportedly required medical treatment. The appellant and the Veteran reported reconciled later, but under the condition that he live in a separate, but nearby residence, which gave the appellant some protection from the Veteran during the times that he became intoxicated and violent. The appellant's statements regarding her history with the Veteran have not been consistent. This damages her credibility. Nevertheless, the law requires that the statement of the surviving spouse as to the reason for the separation "be accepted" in the absence of contradictory information. There is no direct contradictory evidence of record to her statements regarding alleged abuse which led her to separate from the Veteran. By law, her statements must be accepted as true. 38 C.F.R. § 3.53(b). As she has asserted that her separations from the Veteran were due to his misconduct and not due to her fault, they do not interfere with the requirement of continuous cohabitation from the date of marriage to the death of the Veteran. 38 C.F.R. § 3.53(a). The fact that the appellant and the Veteran were living in separate residences during the time of his death also does not affect the element of continuous cohabitation, as the appellant has stated that they lived in separate residences not due to an intent to separate as a couple, but due to his violent behavior. In sum, the appellant was not at fault for all of the separations from the Veteran during their marriage. The appellant has stated that she had no intent to separate from the Veteran as a married couple, but that she left due to fears of violence and later maintained a separate household because the Veteran drank excessively and was physically abusive. There is no evidence that the appellant and the Veteran ever divorced, and it is clear from the appellant's statements that she considered herself to be fully married to the Veteran despite the necessity of living separately from him during the final years of his life. Therefore, the appellant is found to have been the Veteran's surviving spouse for purposes of applying for VA benefits. ORDER The appellant is recognized as the Veteran's surviving spouse. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs