Citation Nr: 1330727 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 10-12 299 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to recognition as the surviving spouse of the Veteran for purposes of entitlement to Department of Veterans Affairs (VA) death benefits. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. C. Graham, Senior Counsel INTRODUCTION The Veteran served on active duty from October 1966 to April 1969. He died in March 2008. The appellant claims to be the surviving spouse of the Veteran. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, RI, that denied the appellant's claim. The appellant requested a Board hearing, but subsequently cancelled her request. FINDINGS OF FACT 1. The Veteran and the appellant were legally married from April 1996 to the date of his death in March 2008, however, divorce proceedings had begun, and the Veteran and his wife separated approximately 11 months prior to his death. 2. The evidence shows that the Veteran and the appellant were separated and living apart at the time of the Veteran's death, and the evidence is in equipoise as to whether the separation was primarily due to the misconduct of the Veteran, without fault of the appellant. CONCLUSION OF LAW Resolving any doubt in the appellant's favor, the criteria for recognition of the appellant as the surviving spouse of the Veteran for purposes of VA death benefits have been met. 38 U.S.C.A. § 101 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.50, 3.53 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further discussed. The term "surviving spouse" is defined as a person of the opposite sex who (1) was the lawful spouse of a Veteran at the time of the Veteran's death, and (2) 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 fault of the spouse, and (3) who has not remarried. 38 C.F.R. § 3.50. The Board notes that on June 26, 2013, the Supreme Court ruled that Section 3 of the Defense of Marriage Act (DOMA), which limited the definition of marriage to spouses of the opposite sex, is unconstitutional. U.S. v. Windsor, 133 S. Ct. 2675. The President of the United States has accepted the Attorney General's recommendation that the Executive Branch of government, to include VA, cease enforcement of the definitions of "spouse" and "surviving spouse" in Title 38 to the extent that they limit Veterans' benefits to couples of the opposite sex. 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 the appellant 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, or where there was a separation by mutual consent without an intent by the surviving spouse to desert the Veteran. 38 U.S.C.A. § 101(3); See Alpough v. Nicholson, 490 F.3d 1352 (Fed. Cir. 2007). In determining whether there was continuous cohabitation, the statements of the surviving spouse as to the reason for the separation will be accepted in the absence of contradictory information. The Federal Circuit in Alpough examined 38 U.S.C.A. § 101(3) with specific attention paid to the exception to the continuous cohabitation requirement. The Federal Circuit's decision examined the exception language: "except where there was a separation which was due to the misconduct of, or procured by, the Veteran without the fault of the spouse." In resolving the question of how to interpret the exception clause, the Federal Circuit held that the verb "procured" referred to "separation," not "misconduct," and that the phrase "procured by" was ambiguous as used in the statute. Id. at 1358. In according deference to 38 C.F.R. § 3.53(b), the Federal Circuit concluded that the separation only negated surviving spouse status if the spouse intended to "desert" the Veteran at the time of the separation. Id. at 1357. The absence of fault on the part of the surviving spouse is to be determined solely at the time of the separation; conduct subsequent to that time is relevant only to the extent that it illuminates the question of fault at the time of the separation. Id. Further, "a separation by mutual consent does not constitute desertion unless the separation resulted from misconduct or communication of a definite intent to end the marriage by the surviving spouse." Alpough v. Nicholson, 490 F.3d 1352, 1357 (Fed.Cir.2007). In this case, it is not disputed that at the time of the Veteran's death, he and the appellant were legally married, and the marriage was never terminated by divorce. While it appears that the appellant did initiate divorce proceedings in June 2007, this action took place months after the Veteran left the marital home. See March 31, 2009, Judgment of Dismissal from the Commonwealth of Massachusetts, The Trial Court, Probate and Family Court Department. The appellant does not allege she and the Veteran continuously cohabited from the date of their marriage to the date of his death; she admits that they separated approximately 11 months prior to the Veteran's death, in April 2007. Rather, she argues that the separation was entirely the Veteran's fault, as he was attempting to evade his legal problems by moving to other states. Reviewing the evidence of record the Board finds, resolving all doubt in the appellant's favor, that the evidence is at least in equipoise as to the question of whether the separation was the Veteran's fault. Specifically, the Board finds probative the appellant's September 2008 statement that the Veteran left Barnstable, Massachusetts, where they had maintained a marital home, after he "had gotten into trouble with the Barnstable police [i]n April [] 2007 after that date he [] ran away to Maine and N.H. I did not know where he was. I became homeless living in a shelter in Hyannis[,] 11 months later he died." The record includes a copy of a police report from the Barnstable Police Department which shows that on the date noted in her September 2008 statement, the appellant called the police, reported that she had a restraining order on the Veteran, and stated that the Veteran was taking firearms out of the house. The police arrested the Veteran for drug possession, carrying a loaded shotgun on a public way, carrying a loaded large capacity rifle, unlawful possession of a large capacity firearm, and unlawful possession of ammunition. Court documents of record indicate that the appellant filed for divorce in June 2007 and that a temporary order in March 2008 required the Veteran to pay alimony to the appellant. As noted above, the statements of the surviving spouse as to the reason for the separation will be accepted in the absence of contradictory information, and no clearly contradictory evidence has been presented as to the reason for the separation of the Veteran and appellant. While the March 2008 temporary order indicated that the Veteran reported that his wife "stole" from him during the marriage, there is no indication in the record that "stealing" was the reason for the separation. In any event, the March 2008 temporary order noted that the appellant disputed that allegation. Further, other evidence of record is supportive of the appellant's statements regarding the reason for the separation. A February 2009 statement from Dr. W.G.K., a Board-certified psychiatrist, noted that he had been treating the appellant since 2002. Dr. W.G.K. noted that his records indicated that sometime after August 2006 the appellant's marriage fell apart: "her husband somehow became very disturbed, probably began using drugs, and left her, unexpectedly, in a totally bereft condition." A statement from the Veteran's daughter indicated that the appellant and the Veteran were trying to reconcile, and the appellant's brother reported that the appellant and the Veteran had been together for many years. As the evidence is at least in equipoise, the benefit-of-the-doubt doctrine does apply, and the Board finds that the separation of the appellant and the Veteran was the Veteran's fault, and the appellant did not intend to desert the Veteran. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). As the separation of the appellant and the Veteran was the Veteran's fault, and the appellant did not intend to desert the Veteran, the Board finds that the continuing of cohabitation requirement was not broken under 38 C.F.R. § 3.53(b), and therefore the appellant may be considered the Veteran's surviving spouse for benefits purposes. ORDER The appellant is the surviving spouse of the Veteran for purposes of entitlement to Department of Veterans Affairs (VA) death benefits. The appeal is granted. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs