Citation Nr: 1327940 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 10-11 524 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to recognition as the surviving spouse of the Veteran for purposes of Department of Veterans Affairs (VA) death benefits. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from August 1964 to May 1967. He died in January 2007. The appellant purports to be his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 decision of the Chicago, Illinois, Department of Veterans Affairs (VA) Regional Office (RO). In October 2012, the Veteran's private attorney withdrew as the appellant's representative. The appellant testified in March 2013 at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record in the Virtual VA file. FINDINGS OF FACT 1. The appellant and the Veteran were married in July 1983. 2. They resided in Chicago, Illinois and had no children born to their union. 3. The Veteran abandoned the appellant in 1986, relocating to Florida; he committed misconduct that caused the separation. 4. Divorce searches from 1983 to 2008 in Chicago, Illinois and 1975 to 2008 in Miami, Florida indicate no record of divorce between the Veteran and appellant in either jurisdiction. CONCLUSION OF LAW The criteria for the appellant's recognition as the Veteran's surviving spouse have been met. 38 U.S.C.A. §§ 101(3), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1(j), 3.50, 3.52, 3.53, 3.54 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act (VCAA) The 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 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). To the extent that the action taken herein is fully favorable to the Appellant, the Board finds that further discussion of the requirements of VCAA is not required at this time. Recognition as the Veteran' Surviving Spouse The Appellant states that she should be recognized as the Veteran's surviving spouse. She maintains that three years after she married the Veteran, he left her and relocated to Florida. She states that she did nothing to make the Veteran abandon her and they never divorced prior to the Veteran's death. She also maintains that she has never held anyone else out as her spouse since her marriage to the Veteran. VA death benefits, including Dependency and Indemnity Compensation (DIC) and death pension, are payable to a veteran's surviving spouse. 38 U.S.C.A. §§1310, 1541 (West 2002 & Supp. 2012). For the purpose of administering veterans' benefits, the term "surviving spouse" of a veteran means a person of the opposite sex who was the spouse of the 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 who has not remarried or (in cases not involving remarriage) has not since the death of the veteran, and after September 19, 1962, 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 & Supp. 2012); 38 C.F.R. § 3.50 (2012). The requirement of continuous cohabitation to be considered a surviving spouse, 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. 38 C.F.R. § 3.53(a) (2012). The burden of proof is upon the appellant to establish her status as the surviving spouse of the veteran with respect to claims for DIC and other death benefits. Sandoval v. Brown, 7 Vet. App. 7, 9 (1994). This may be accomplished in several manners, including but not limited to utilization of relevant public records such as a marriage certificate. See 38 C.F.R. § 3.205(a). The statement of the surviving spouse as to the reason for the separation will be accepted in the absence of contradictory information to establish the criteria for continuous cohabitation. 38 C.F.R. § 3.53(b). Pertinent regulations provide that, where an attempted marriage is invalid by reason of legal impediment, VA law allows for certain attempted marriages to be "deemed valid" if certain legal requirements are met. Basically, such an attempted marriage will be "deemed valid" if: (a) the attempted marriage occurred one year or more before the Veteran died; and (b) the claimant entered into the marriage without knowledge of the impediment; and (c) the claimant cohabited with the Veteran continuously from the date of the attempted marriage until his death; and (d) no claim has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits. 38 U.S.C.A. § 103(a) ; 38 C.F.R. § 3.52. In Gregory v. Brown, 5 Vet. App. 108 (1993), the U.S. Court of Appeals for Veterans Claims (Court) identified a two-part test to determine whether a spouse can be deemed to have continuously cohabited with a Veteran even if a separation has occurred. First, the spouse must be free of fault in the initial separation. Id. at 112. Second, the separation must have been procured by the Veteran or due to his misconduct, with the fault determination based on an analysis of the conduct at the time of separation. Id. The Court emphasized that the "without fault" requirement of the law was not a continuing one. Rather, fault, or the absence of fault, is to be determined based on an analysis of conduct at the time of separation. Id. A March 2008 statement was received by VA from the Veteran's mother. She indicated that the Veteran and the appellant married sometime in the 1970's or 1980's. She related that the Veteran was killed in an automobile accident in Miami, Florida. She stated that she felt the appellant should have contacted her if she knew the Veteran had been killed. She stated that she had a difficult time getting her son's remains from Florida to Illinois for burial. She also related that she would not have told the coroner in Florida that the Veteran was divorced unless the Veteran had told her that. The appellant submitted paperwork showing that she presently is in receipt of Social Security benefits as a widow receiving benefits from her deceased husband, the Veteran. In January 2009, a statement was received by VA from the appellant's brother. He indicated, in pertinent part, that the Veteran and the appellant were married in July 1983, lived with his grandmother at her house from 1983 to 1986, and he had no knowledge of the appellant ever obtaining a divorce from the Veteran. Also in January 2009, the appellant submitted a statement to VA indicating that she married the Veteran in July 1983, she had no knowledge of any legal impediment to marriage as the Veteran told her at the time of their marriage that he had never been married before, and she had made a successful attempt of obtaining records indicating that no divorce had been recorded in Florida or Illinois between she and the Veteran. The appellant testified at a Travel Board hearing before the undersigned VLJ in March 2013. The appellant testified that she has been continuously married for more than 25 years. She stated that her husband married her, moved into her grandmother's house with her, and did not have any household or financial responsibilities. He would stay away for days, only to return when he desired. In 1986, he decided to move to Florida. He left her in Chicago, although she still loved him and never asked him to leave. Throughout the years, he would come to visit her on occasion, and would give her money at those times. She last saw him sometime around 1993 to 1995. She last spoke to him in 1997. She never remarried and he always considered her his spouse. His mother indicated that they were divorced, but she never divorced him and he never divorced her. His mother did not inform her of his death, and she only became aware of his death when she became disabled and contacted VA for assistance. In this case, a review of the record reveals a copy of the Veteran's and the appellant's marriage certificate indicating that they were married in Illinois in July 1983. Also, there are written statements from the Clerk of the Court in Cook County, Illinois and Dade County, Florida, indicating that as of the Veteran's death, there was no record of any filed divorce proceedings in either jurisdiction between the Veteran and the appellant. Although the Veteran's death certificate indicates that he was divorced, his mother indicated that she provided that information to the corner in Miami, Florida upon the Veteran's death, because the Veteran had previously told her that he and the appellant were divorced. However, there is no record of such. A thorough review of the claims folder indicates, in pertinent part, that the Veteran had previously indicated that he had been married to two other women prior to his marriage to the appellant. On various occasions since 1983, he has reported in the record that he was married, divorced and divorced three times. His most recent VA application in 1993 for Vocational Rehabilitation indicates that he had a spouse. Although there is evidence of two previous marriages, there is no indication in the record that a divorce was procured from either previous spouse. However, as indicated by the appellant, she was not aware of prior spouses as she claims that the Veteran told her upon marriage that he had never been married before. They were married by a Catholic priest at that time. There is no evidence in the record to the contrary. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit, citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id., at 1076; see also 38 U.S.C.A. § 7104(a). Further, the Court has held that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. See Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). With regard to fault, there is no evidence to show that the appellant was at fault in the separation between her and the Veteran. She indicated that the Veteran abandoned her. The fault/absence-of-fault issue is to be based on an analysis of the conduct at the time of separation. In this case, there is no conflicting evidence of record; the record only shows that the Veteran abandoned the appellant, leaving her in Chicago and moving to Florida. The appellant has not made any inconsistent statement as to that assertion at this point. She has testified that she was always willing to reconcile with the Veteran, that he visited her on occasion throughout the years until the early 1990's and at those times, they maintained a spousal relationship, and she never relocated from Chicago or held out another man as her spouse. None of these findings are contradicted anywhere in the record. Her statements are therefore to be accepted. 38 C.F.R. § 3.53(b). Given the foregoing, the Board finds that the evidence indicates that the appellant is not shown to have been at fault in the separation. As for the issue of whether the Veteran committed misconduct that caused the separation, the evidence indicates that the Veteran abandoned his marriage. All of the evidence of record shows that the Veteran left Illinois and relocated to Florida. The appellant testified that she left herself open to reconciliation in the marriage, but the Veteran failed to tell her his whereabouts in Florida, and he no longer communicated with her after 1997. There is no contrary evidence of record. Given the foregoing, the Board finds that the Veteran abandoned the appellant in 1986, that he committed misconduct that caused the separation, and that the continuity of the cohabitation must be considered as not having been broken. 38 C.F.R. § 3.53(b). Accordingly, the appellant meets the continuous cohabitation requirements for recognition as the Veteran's surviving spouse for purposes of eligibility for VA benefits, and resolving all doubt in her favor, the Board finds that the evidence is at least in equipoise, and that recognition of the appellant the surviving spouse of the Veteran for the purpose of receiving VA benefits is warranted. 38 C.F.R. §§ 3.1(j), 3.50, 3.52, 3.53, 3.54. ORDER Entitlement to recognition as the surviving spouse of the Veteran for the purpose of VA death benefits is granted. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs