Citation Nr: 1331826 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 10-30 208 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to recognition of the appellant as the surviving spouse of the Veteran for purposes of Department of Veterans Affairs (VA) benefits. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to June 1969, and died in February 2008. The appellant is his widow. An October 2008 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) concluded the appellant was not the surviving spouse of the Veteran because she had not continuously cohabitated with the Veteran from the time of their marriage until his death. The appellant filed a timely appeal to the Board of Veterans' Appeals (Board). FINDINGS OF FACT 1. The Veteran and the appellant were married in February 2005. 2. They were still legally married at the time of the Veteran's death in February 2008. 3. The Veteran and the appellant were living apart when the Veteran died, but this was without fault on the part of the appellant. CONCLUSION OF LAW The criteria for recognition of the appellant as the surviving spouse of the Veteran for purposes of VA death benefits are met. 38 U.S.C.A. §§ 101(3), 103, 5107 (West 2002); 38 C.F.R. §§ 3.1(j), 3.50, 3.53 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In light of the fully favorable finding with regard to the appellant's claim for recognition as the surviving spouse of the Veteran, no further discussion of compliance with the duties to notify and assist is warranted at this time. Analysis The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The appellant seeks recognition as the surviving spouse of the deceased Veteran for VA benefit purposes. The Board notes that the term "surviving spouse" means 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 or in the case of temporary separations) 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); 38 C.F.R. § 3.53 . 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). For VA benefit purposes, a marriage means a marriage valid under the law of the place where the parties resided at the time of marriage, or the law of the place where the parties resided when the right to benefits accrued. 38 U.S.C.A. § 103(c); 38 C.F.R. § 3.1(j). The evidence establishes that the appellant and the Veteran were legally married; this is demonstrated by a marriage certificate showing they were married in February 2005. The Board acknowledges the Veteran asserted in an August 2007 letter that he had contacted a lawyer and a divorce was pending. There is nothing in the record demonstrating the marriage was terminated by a decree of divorce. The appellant submitted a claim for an apportionment of the Veteran's benefits in May 2007. At that time, she wrote she had recently moved to Sumter, South Carolina at the Veteran's request for them to "work on our marriage." She related she came to Sumter "with him to find him not to be here." She added he was not providing any support to her. In a letter dated August 2007, the Veteran asserted that he and the appellant never spent more than three months together at the same residence. He also alleged he gave her access to his bank account and she took more than $25,000 from him. The appellant maintained in an August 2007 statement that when she came to South Carolina, the Veteran had promised to have a place to live, but that was not the case. She also claimed that the Veteran never answered her telephone calls. The appellant submitted a claim for VA death benefits in March 2008. She stated she married the Veteran in February 2005, and the marriage ended upon the Veteran's death in February 2008. She further noted she had lived continuously with the Veteran from the date of the marriage until his death. In July 2008, the appellant claimed she and the Veteran had never considered divorce or separation and that they had lived together while in Georgia. She reported the Veteran had contributed to her needs financially. In August 2008, L.J. wrote that he was a good friend of the Veteran's. He related that when the Veteran and the appellant came to Sumter, they stayed at his house on their way back to Georgia. He added that when the Veteran decided to move to South Carolina, the Veteran stated that he and the appellant were trying to buy a house in South Carolina, and that it was due to his health. L.J. insisted the Veteran never said anything about leaving the appellant. In a January 2010 statement, L.J. and E.J. wrote the Veteran and the appellant stayed with them on and off during 2007. In a statement dated February 2010, C.M. reported the Veteran came to stay in her home in January 2007. Shortly thereafter, she met the Veteran who came to her house every other month to pick the appellant up for the weekend, and that this went on for several months. In a February 2010 letter T.C. asserted he had known the Veteran and the appellant over several years. He visited them in 2007 in South Carolina when they were in the process of purchasing a new home. In Gregory v. Brown, 5. Vet. App. 108 (1993), the 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. However, certain conduct subsequent to the time of separation may be relevant in an appropriate case with respect to the question of fault at the time of separation. Still the mere acts of seeking divorce and failing to reconcile are not in and of themselves relevant to the question of fault, and, standing alone, do not constitute evidence of fault at the time of separation. Certainly, if a spouse has been physically and emotionally abused and separates from the abuser, the abused spouse's acts of initiating a divorce and refusing to reconcile would not be competent evidence to demonstrate fault on the part of the abused spouse at the time of the separation. Id. In Alpough v. Nicholson, 490 F.3d 1352, 1357 (Fed. Cir. 2007), the Federal Circuit Court further clarified that separation by mutual consent generally does not constitute desertion by a potential surviving spouse, such that a claimant is exempted from the continuous cohabitation requirement under 38 C.F.R. § 3.53 (b) for the purpose of establishing recognition as the surviving spouse for death benefits. The Federal Circuit explained that under a proper interpretation of 38 U.S.C.A. § 101(3), a spouse can qualify as a surviving spouse if a separation was procured by the Veteran without the fault of the surviving spouse, even if there was no misconduct by the Veteran. Id. Therefore, under a proper interpretation of section 3.53(b), a separation by mutual consent, without an intent to desert, does not break the continuity of cohabitation. Id. at 1358. However, the Federal Circuit added that a separation by mutual consent would constitute desertion if the separation was induced by misconduct or communication of a definite intent to end the marriage by the surviving spouse, thus, breaking the continuity of cohabitation and precluding surviving spouse recognition in such instance. Id. at 1357. The Board concedes there is conflicting evidence in the record regarding whether the appellant lived continuously with the Veteran from the time of their marriage until his death in February 2008. Although she claimed to have done so on her March 2008 application for VA death benefits, the fact she applied for an apportionment suggests otherwise. The fact remains, however, there is no evidence or allegation that any separation was induced by the misconduct or communication of a definite intent to end the marriage by the appellant. In a January 2010 statement, the appellant asserted the Veteran had bad days, and when he did, he would disappear without any contact until he was ready to return home. She also alleged that alcohol motivated his actions. She also referred to the fact the Veteran could be very vindictive. In this regard, the Board points out an October 2000 VA outpatient treatment note indicates the Veteran had a history of intemperate alcohol use. There is essentially no evidence of record concerning the reason for any separation. The Court has held that fault, or the absence of fault, is to be determined based on an analysis of conduct at the time of the separation, and that the "without fault" requirement of the law is not a continuing one. Gregory, 5 Vet. App. at 112. It appears that any separation was by mutual consent of the Veteran and the appellant. The Federal Circuit has held that separation by mutual consent generally does not constitute desertion and does not break the continuity of cohabitation under 38 C.F.R. § 3.53(b). See Alpough, 490 F.3d at 1358. In sum, the Board finds the evidence does not establish the appellant intended to desert the Veteran and, thus, procure their separation. It is not disputed they were legally married at the time of the Veteran's death and the appellant has not remarried. The Board concludes, therefore that the appellant is the Veteran's surviving spouse for purposes of entitlement to VA death benefits. ORDER Recognition of the appellant as the Veteran's surviving spouse for purposes of VA death benefits is granted. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs