Citation Nr: 1334602 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 11-14 009 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Whether the appellant may be recognized as the surviving spouse of the Veteran for purposes of entitlement to VA death benefits. REPRESENTATION Appellant represented by: Peter Goodall, Esq. WITNESSES AT HEARING ON APPEAL Appellant and her son ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran had active service from August 1966 to March 1970. He died on November [redacted], 2007. The appellant is seeking to be recognized as the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 administrative decision of the Salt Lake City, Utah, Department of Veterans Affairs (VA), Regional Office (RO). In July 2011, the appellant and her son testified at a personal hearing over which the undersigned presided while at the RO. A transcript of that hearing has been associated with his claims file. During the hearing, she submitted additional evidence with a waiver of initial RO consideration. See 38 C.F.R. § 20.1304. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with this claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran and the appellant were married on March [redacted], 2005. 2. The Veteran and the appellant separated on or about December [redacted], 2005. 3. The competent and credible evidence does not show that this separation was due to the Veteran's misconduct. 4. The appellant filed for divorce in January 2006; no divorce decree is of record. 5. There was no continuous cohabitation of the Veteran and the appellant from the time of marriage until the time of the Veteran's death. CONCLUSION OF LAW The criteria for the appellant's recognition as the Veteran's surviving spouse have not 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 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), 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 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield, 444 F.3d 1328; see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the appellant was sent a letter in December 2008 that provided information as to what evidence was required to establish the appellant's status as the Veteran's surviving spouse and explained what type of information and evidence was needed. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the appellant in the development of the claim. This duty includes assisting in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, her statements in support of the claim are of record, including testimony provided at a July 2011 hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the appellant's claim. The United States Court of Appeals for Veterans Claims (Court) has held that that provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). At the hearing the undersigned identified the issue and sought information as to the circumstances of the appellant's separation from the Veteran. The Board thereby met the duties imposed by 38 C.F.R. § 3.103(c)(2) as interpreted in Bryant. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with these duties; they have not identified any prejudice in the conduct of the Board hearing. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Relevant Law and Regulations The surviving spouse of a deceased Veteran may be eligible for VA benefits, to include pension and dependency and indemnity compensation benefits. 38 U.S.C.A §§ 1310; 38 C.F.R. § 3.54; see Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). To be recognized as a surviving spouse for the purpose of establishing entitlement to VA benefits, an 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); 38 C.F.R. § 3.50(b)(1). In this regard, 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). 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). In Gregory v. Brown, 5 Vet. App. 108 (1993), the Court identified a two-part test to determine whether a spouse can be deemed to have continuously cohabitated 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. 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. Id. In Alpough v. Nicholson, 490 F.3d 1352, 1357 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held 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 intent to desert, does not break the continuity of cohabitation. Id. at 1358. The Federal Circuit, however, 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. Analysis The appellant is seeking to establish herself as the surviving spouse of the deceased Veteran for VA benefits purposes. In January 2009, the RO denied the appellant basic eligibility for dependency and indemnity compensation (DIC) benefits on account of her not being the Veteran's surviving spouse. According to their marriage certificate, the Veteran and the appellant were married on March [redacted], 2005. The Veteran and the appellant separated on or about December [redacted], 2005. The appellant filed for divorce later that month, and her petition was received by the court in January 2006. According to her testimony, the appellant moved out of the marital home in Kearns, UT, in December 2005 and into her own residence in Bountiful, UT, which the appellant's attorney described as 40 minutes away. At the time of the Veteran's death on November [redacted], 2007, divorce proceedings were pending, but not finalized. These proceedings were dismissed in July 2008, following the Veteran's death. The appellant has not remarried. These facts are undisputed. Currently at issue in this case is whether the appellant continuously cohabitated with the Veteran from the date of their marriage until the date of the Veteran's death. Although the appellant and the Veteran were not divorced at the time of his death, the evidence shows that the appellant did not live with the Veteran continuously from the date of marriage to the date of his death (i.e. continuous cohabitation). See 38 C.F.R. §§ 3.50(b); 3.53. In this regard, the appellant concedes that she and the Veteran did not share a single physical residence after she filed for divorce in December 2005. She has argued alternately that this was the type of ordinarily occurring temporary separation that did not break the continuity of the cohabitation under 38 C.F.R. § 3.53(a) or that this separation was caused by the Veteran's misconduct which likewise would not break the continuity of the cohabitation. Taking the appellant's arguments in turn, the Board will address her statements that she and the Veteran retained separate residences for employment reasons. See January 2009 statement. In this way, she appears to be arguing that this was a separation by mutual consent, without intent on the part of the surviving spouse to desert the Veteran. The evidence of record does not support this. First, while the appellant's employment may have required her to live elsewhere, the evidence does not suggest that the Veteran's housing choice was based on his employment. VA treatment records note that the Veteran retired in 1999 in conjunction with his leg amputation. He was deemed unemployable by VA in December 2000. He was also awarded special monthly compensation for his housebound status in a January 2007 rating decision, which reflected a determination that the Veteran was "substantially confined to his dwelling and/or his immediate premises." This award was effective April 2006. Second, VA treatment records from December 2006 state that he was living in a motel during his divorce proceedings, not his home. This behavior is inconsistent with the appellant's implied claim that but for their employment obligations, they would live together. Most compelling, however, is the timing of this move, which coincided with the initial divorce filing. Both the appellant and her attorney have testified that she first moved in conjunction with the initial divorce filing. See Hearing Transcript. Thus, the evidence does not suggest that the separation was merely one of mutual consent, such as for purposes of convenience, health, business, etc. Filing a petition for divorce is wholly inconsistent with a finding that the appellant did not intend to desert the Veteran. Thus, the Board rejects this argument as not compelling. Next, the Board will address the question of fault. As detailed above, the test of whether a spouse can be deemed to have continuously cohabitated with a Veteran if a separation has occurred is (1) whether the spouse is free of fault in the initial separation, and (2) whether the separation was procured by the Veteran or due to his misconduct, based on an analysis of the conduct at the time of separation. Gregory, 5 Vet. App. 108. The statement of the surviving spouse as to the reason for the separation will be accepted in the absence of contradictory information. 38 C.F.R. § 3.53(b). In this case, however, there is contradictory information. Indeed, the reason for the separation is in dispute. In her testimony, the appellant stated that the reason for the divorce was the Veteran's misconduct, specifically an extramarital affair. However, the Veteran's sister-in-law, S.C., has stated that the Veteran and the appellant had lived together only briefly "when he discovered her intent to harm him and collect his life insurance. They have been estranged ever since." See December 2008 Report of Contact. The official record of these proceedings does not shed any more light on this issue as both the appellant's original divorce claim and the Veteran's February 2006 response and counterclaim cite irreconcilable differences are the reason that a divorce was sought. Adultery is a grounds for divorce in Utah, as in most states, but was not cited in the appellant's divorce petition. The appellant's attorney correctly alluded to the benefits of no-fault divorce clauses; however, that does not convert these neutral documents into evidence supporting the appellant's contentions. The evidence weighing against the appellant's claims that the Veteran's extramarital affair was the initial cause of the separation includes the December 2008 Report of Contact with the Veteran's sister-in-law, S.C., during which she said that the Veteran and the appellant had lived together only briefly (three days) "when he discovered her intent to harm him and collect his life insurance. They have been estranged ever since." This claim seems to be corroborated by the protective order proceedings, which show that the Veteran was granted an ex parte protective order on December [redacted], 2005, the day after their separation. The protective order was dismissed in January 2006 following a hearing. In his February 2006 counterclaim, the Veteran petitioned for a restraining order. Specifically, the petition asked that the appellant "be permanently restrained from annoying, bothering, or harassing [the Veteran] at any time and at any place" and that she "be permanently restrained from coming to the home of [the Veteran] for any reason." While this does not in any way verify S.C.'s allegations that the appellant intended to harm the Veteran and collect his life insurance, these actions are consistent with the suggestion that the Veteran believed the appellant was in some way a threat to his personal safety. The appellant has also offered lay evidence of a claimed reconciliation in order to bolster her claim that the initial divorce filing was precipitated by the Veteran's extramarital affair. The appellant testified that the Veteran began seeking reconciliation in January 2006, and that she and the Veteran then began seeing each other nearly every day. In support of this claim, the appellant's son, T.M., has provided lay statements and testimony that the appellant and the Veteran divided their time between their two residences, that they spent time with the appellant's grandson, and that the Veteran provided the appellant with financial support until her incarceration in October 2007. T.M.'s statements are reiterated by E.M. Both the appellant and her son are competent to provide lay evidence of the appellant's interactions with the Veteran between the time of their initial separation and his death. It is unclear what the relationship between E.M. and the Veteran and/or appellant is. As her statement is cosigned by T.M., determination of her competency is unnecessary. The question then becomes whether these lay statements are credible. The Board finds that they are of limited probative value. Notably, additional evidence of record conflicts with these accounts. First, the records related to the divorce proceeding do not indicate a reconciliation. The appellant testified that she told her attorney to withdraw the case in September 2007 because she and the Veteran had reconciled. The divorce proceedings record shows a withdrawal of counsel in September 2007. In a July 2011 letter, the appellant's former divorce attorney stated that she believed the appellant's September 2007 withdrawal of counsel was based on her desire to abandon pursuit of divorce. Nevertheless, the appellant did not withdraw the divorce petition. Moreover, while this evidence may suggest that the appellant was seeking reconciliation, it does not tend to show that the Veteran was likewise agreeable to a reconciliation, nor does it corroborate her contention that the reason for the initial separation was an extramarital affair on the part of the Veteran. The appellant has likewise pointed to the fact that she and the Veteran did not attend the recommended mediation as evidence of reconciliation. Records relating to a January 2007 hearing regarding the Veteran's motion for bifurcation show a recommendation of mediation. Additionally, records related to a pretrial conference in March 2007 noted that the parties had not yet participated in mediation, and that the sole issues involved the appellant's claim for alimony and some share of the equity in the marital home. There is no mention of attempted reconciliation in these records and no mention of a withdrawal of the Veteran's motion for bifurcation. In this way, the Veteran's actions did not suggest a reconciliation. Instead, the Veteran's divorce attorney stated that the Veteran adamantly wanted the divorce but he was too ill to attend mediation, and he passed away before it could be finalized. See January 2009 Report of Contact. This attorney's statement is consistent with the Veteran's VA treatment records which show that he was undergoing dialysis at that time, and that he was considered housebound. Finally, the records related to the end of the Veteran's life do not include reference to the appellant. The Veteran has stated that she was incarcerated 10 days prior to the Veteran's death, but there is no indication that prior to that time she was with the Veteran as his health declined. VA treatment records during this alleged reconciliation period make no reference to the appellant except records from December 2006, which note that the Veteran was married, but lived alone. The Veteran's original death certificate, dated November [redacted], 2007, lists his marital status as divorced and does not list a spouse's name. The Veteran's death certificate was amended on December [redacted], 2008, after the appellant began to seek VA benefits. His obituary does not list the appellant as the Veteran's wife. Instead, lists his siblings and his sister-in-law and thanks "his caregiver and companion [C.P.]." The Veteran's sister-in-law, S.C., is listed as the source of information for the November 2007 death certificate and she wrote and paid for the obituary. The appellant and her attorney have argued that S.C. is not competent to provide lay evidence regarding the Veteran's relationship with the appellant because, as the Veteran's former sister-in-law, she was not close to the Veteran and his family. Nevertheless, S.C. was the person who paid for the Veteran's burial costs, including reimbursing other family members for their costs, and his obituary. She was the one who obtained a death certificate. She was the one who sought VA burial benefits. Thus, the Board finds no reason to question S.C.'s self-defined role as "devoted sister-in-law" and, therefore, her competency to comment on the relationship between the Veteran and the appellant. Additionally, as the Veteran had no dependents at the time of his death, S.C. had no direct or indirect financial motive for thwarting the appellant's claim. Thus, S.C.'s statements are found to be credible. By contrast, the appellant has a significant financial interest in showing that she is the Veteran's surviving spouse. Likewise, her son has an indirect financial motive for confirming his mother's statements regarding a reconciliation. Thus, the Board finds the statements of the Veteran's divorce attorney and S.C. to be more probative that those of the appellant and her son. See Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has "the authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence."); see also Caluza v. Brown, 7 Vet. App. 498 (1995) (holding that in weighing an applicant's credibility, the Board may consider any evidence of interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, and desire for monetary gain). Ultimately, the Board finds that the record shows neither a reconciliation between the Veteran and the appellant prior to his death nor, by extension, that the Veteran's misconduct in the form of an extramarital affair was the cause of the initial separation. Again, the evidence does not suggest that the separation was merely one of mutual consent. Moreover, the initial divorce petition was filed by the appellant, not the Veteran. Absent competent and credible evidence showing that the separation was due to the misconduct of the Veteran, the continuity of cohabitation is broken. In view of the finding that the appellant did not live with the Veteran continuously from the date of marriage to the date of the Veteran's death, the Board concludes that the appellant may not be recognized as the surviving spouse. Thus, the appellant is not entitled to basic eligibility for her DIC claim, and the appeal must be denied. ORDER The appellant is not recognized as the surviving spouse of the Veteran for purposes of entitlement to VA death benefits. ____________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs