Citation Nr: 1340958 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 09-44 742 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether the appellant may be recognized as the Veteran's surviving spouse for the purpose of entitlement to Department of Veterans Affairs death benefits. WITNESSES AT HEARING ON APPEAL Appellant and the Veteran's brother ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served on active duty from May 1954 to May 1960. The Veteran died in December 2008. The appellant in this matter was married to the Veteran at the time of his death, and is claiming that she is his surviving spouse for purposes of benefits payable by the Department of Veterans Affairs (VA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 administrative decision of the Manila, the Republic of the Philippines, Department of Veterans Affairs (VA) Regional Office (RO), which held that the appellant was no longer a surviving spouse. The appellant and the Veteran's brother testified at a hearing held at the RO in February 2010 before a Decision Review Officer, and a transcript of that hearing has been associated with the claims file. Review of the claims file includes the paper and electronic records. The Board notes that the RO in a September 2013 forfeiture decision determined that the appellant had forfeited all rights, claims, and benefits to which she might otherwise be entitled under laws administered by VA. However, the Board will review the merits of the claim for status as surviving spouse without regard to that determination because the time period during which the claimant can appeal the forfeiture decision has not expired. 38 C.F.R. § 20.302 (2013). FINDING OF FACT The weight of the evidence shows that appellant and the Veteran did not live together continuously from the date of marriage until the date of the Veteran's death, and that the appellant was not without fault in the separation. CONCLUSION OF LAW The appellant is not 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, 1541 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.5, 3.50, 3.53, 3.1000 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of the 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the appellant in February 2009 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. VA has fulfilled its duty to assist the appellant in obtaining identified and available evidence needed to substantiate a claim. The appellant submitted lay statements. The RO conducted two field examinations. Governing Law and Regulation Benefits under Chapters 13 of 38 U.S.C. may be paid to the surviving spouse of a veteran who died on or after January 1, 1957, who was married to the veteran for one year or more, or for any period of time if a child was born of the marriage, or was born to them before the marriage. 38 U.S.C.A. §§ 1102, 1304; 38 C.F.R. § 3.54 (2013). The same criteria apply to "spouses" attempting to show entitlement to any accrued benefits. 38 C.F.R. § 3.1000(d)(1) (2013). Likewise, the same criteria apply to "spouses" attempting to show entitlement to any pension benefits. 38 U.S.C.A. § 1541. Under 38 C.F.R. § 3.50(a), a spouse is a person of the opposite sex whose marriage to the Veteran meets the requirements of 38 C.F.R. § 3.1(j). VA defines a "marriage" as a marriage valid under the law of the place where the parties resided at the time of marriage, or the laws 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 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 a 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 (i.e., continuous cohabitation) except where there was a separation that was due to the misconduct of, or procured by, the Veteran without the fault of the spouse; (4) and 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 himself out openly to the public to be the spouse of such other person. See 38 U.S.C.A. § 101(3); 38 C.F.R. § 3.50(b). 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. 38 C.F.R. § 3.53(a). 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 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). The statement of the surviving spouse as to the reason for the separation will be accepted in the absence of contradictory information. Id. State laws will not control in determining questions of desertion; however, due weight will be given to findings of fact in court decisions made during the life of the Veteran on issues subsequently involved in the application of this section. Id. In Gregory v. Brown, 5 Vet. App. 108 (1993), the United States Court of Appeals for Veterans Claims (the 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 the Veteran's misconduct, with the fault or the absence of fault to be determined based on an analysis of the 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, but the mere acts of seeking divorce and failing to reconcile are not in and of themselves relevant to such a question, 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 (the Federal Circuit) held that separation by mutual consent does not constitute desertion by a potential surviving spouse unless the separation resulted from misconduct or communication of a definite intent to end the marriage by the potential surviving spouse. The Federal Circuit explained that under a proper interpretation of 38 U.S.C. § 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. at 1358. The Federal Circuit held that under a proper interpretation of 38 C.F.R. § 3.53(b), a separation by mutual consent, without an intent to desert, does not break the continuity of cohabitation. Id. Analysis The Veteran and the appellant got married in October 1996, and the Veteran died in December 2008. The appellant admits that she and the Veteran separated in June 2004 but has argued that they reconciled prior to his death. For reasons explained in great detail, the Board does not find the appellant credible in regard to her assertion that they reconciled or as to being without fault in the separation. In June 2004, the appellant applied for an apportionment of the Veteran's VA benefits. She alleged that the Veteran left their house with his brother and that she thought there was no misunderstanding between them except for the allegations of his relatives and their interventions in their lives. She stated that she finally met with the Veteran and that he told her that he decided to separate from her because of the many accusations against her. In a July 2004 statement, the appellant asserted that she was separated from the Veteran because he was taken by his relatives so that they would benefit from his VA pension benefits. In a July 2004 statement, the Veteran asserted that the appellant spent all the money in his bank account that was intended for his medicines and hospitalizations when he gets sick, that she was not taking care of him, and that instead she was always out of their home. In her January 2009 claim, the appellant stated that they did not continuously live together and that the reason for the separation was that the Veteran was taken away from her by his siblings. In a February 2009 statement, the appellant stated that after she and the Veteran separated, she continued to live in their residence while he lived with his relatives. She denied that she had an affair. She acknowledged that when the Veteran died, his relatives called to inform her. In a June 2009 report of contact, the appellant insisted that the separation from the Veteran was not her fault because his relatives took him away from her and that the relationship would not have lasted eight years if she were not a good wife. In an October 2009 statement, the appellant reported that she and the Veteran had reconciled in 2007 and were together until the time of his death. She made a similar assertion in her October 2009 VA Form 9. In November 2009, the appellant submitted a statement that was supposedly prepared by the Veteran in September 2007 in which he reported that he left their home with his brother because he believed that the appellant was having an affair. In this statement, it was claimed that the appellant showed up at the Veteran's brother's home where he lived and apologized for what happened between them in the past. The statement also indicated that they were reconciling because the Veteran needed her to take care of him until he died. In a November 2009 statement, the Veteran's brother stated that the Veteran and the appellant reconciled in September 2007 and remained reconciled until his death in December 2008. In a February 2010 statement, the appellant claimed that she tried to talk to the Veteran after they had separated while he was living at his niece's house but that he would not talk to her because his relatives were threatening him. In a February 2010 statement, the Veteran's niece confirmed that the Veteran's brother brought him to her house in June 2004 when he left the appellant and that the Veteran's brother convinced the Veteran that the claimant had had an affair. The niece claimed that the Veteran and the appellant lived together from September 2007 to the date of his death. At the February 2010 hearing, the appellant testified that she did live with the Veteran from September 2007 until his death. She denied that she had had an affair with anyone or that she had misused money intended to pay for his medicines. She stated that the Veteran was afraid and could hardly talk when she first saw him after the separation. She asserted that she did not commit any offense against the Veteran to give him reason to leave her. The Veteran's brother testified that the appellant had not had an affair and that after the Veteran learned that she had not had an affair, he was too ashamed to ask the appellant for a reconciliation because he had had the allegation investigated. In a September 2010 deposition during a field examination, the appellant acknowledged that she and the Veteran did not reconcile in 2007 as she had claimed and that she did not start living again with the Veteran in 2007 as she had claimed. She stated that she, her niece, and her niece's "husband" agreed that it would be better for her appeal to claim that she and the Veteran had reconciled. She indicated that the last time she saw the Veteran was in March 2007 when they sold their house. She added that neither the Veteran nor she was at fault in the separation and that the Veteran's brother was at fault in the separation. In a June 2011 statement, the appellant claimed that the investigator was so intimidating that she became distraught. She said that her answers were influenced by her unclear train of thought and that her answers were thus unreliable. She reiterated that she and the Veteran reconciled in September 2007 and that she was in no way involved in any fraudulent act. A November 2011 VA field examination report shows that the field examiner contacted the appellant in November 2011. She recanted her testimony in her deposition that she never reconciled with the Veteran prior to his death. She again stated that she and the Veteran had reconciled. She acknowledged that the Veteran's niece and her "live-in partner" helped the Veteran prepare the September 2007 statement in which he supposedly said that they had reconciled. She had no explanation for why that statement was not submitted until after he died. The Veteran's niece's "live-in partner" stated that the appellant never spent the night at where the Veteran resided after their separation. He acknowledged that he and the Veteran's niece helped the Veteran prepare the September 2007 statement, but that he had no explanation why the statement was not sent to VA while the Veteran was still alive. The Veteran's niece substantially corroborated her "live-in partner's" testimony. The weight of the evidence shows that the Veteran and the appellant separated in June 2004. Although the appellant has asserted that they reconciled, the Board finds such statements to clearly be lacking in credibility. As noted, in her January 2009 claim, the appellant stated that they did not continuously live together and that the reason for the separation was that the Veteran was taken away from her by his siblings. She repeated this history in a May 2009 statement. The appellant subsequently began submitting contrary statements asserting that she had reconciled with the Veteran prior to his death. However, the appellant acknowledged that this was not the case during her September 2010 deposition, admitting that she and the Veteran did not reconcile in 2007 as she had claimed and that she did not start living again with the Veteran prior to his death. In addition, she stated that she, her niece, and her niece's "husband" agreed that it would be better for her appeal to claim that she and the Veteran had reconciled, and that they had helped her to prepare various documents submitted in support of her claim. Although the appellant later recanted these admissions, the Board finds that it is clear from the various contradictory statements she has submitted, and the results of the RO's field investigations, that the appellant did not live with the Veteran prior to her death, and that it was only after the involvement of her niece and the niece's "husband" that she began to fraudulently claim otherwise. Therefore, the Board concludes that they did not continuously cohabitate from the date of marriage until the date of his death. The question, therefore, is whether the separation that was due to the misconduct of, or procured by, the Veteran without the appellant being at fault. The weight of the evidence shows that the separation was procured by the Veteran because he left their residence and that there is no evidence of misconduct on his part. The appellant has not alleged that the separation was by mutual consent and has blamed the Veteran's relatives for the separation. Thus, the next matter is whether there was fault on the part of the appellant for the separation. At the time of the separation, the Veteran did allege that the appellant was at fault. The Veteran asserted that the appellant spent all the money in his bank account that was intended for his medicines and hospitalizations when he gets sick, that she was not taking care of him, and that instead she was always out of their home. At the time of the separation, the appellant claimed that she was not at fault. In June 2004, she alleged that the Veteran left their house with his brother and that she thought there was no misunderstanding between them except for the allegations of his relatives and their interventions in their lives. She stated that she finally met with the Veteran and that he told her that he decided to separate from her because of the many accusations against her. In a July 2004 statement, the appellant asserted that she was separated from the Veteran because he was taken by his relatives so that they would benefit from his VA pension benefits. As discussed above, the Board has significant concerns regarding the appellant's credibility. She has provided contradictory information regarding whether she ever reconciled and lived with the Veteran after the separation was initiated. From January to June 2009, she denied that she had reconciled with the Veteran. By October 2009 when she had perfected an appeal on this claim, she asserted that she and the Veteran reconciled in 2007. She maintained that assertion thru the February 2010 hearing. She, however, in a deposition taken in September 2010 during a field examination acknowledged that she lied when she claimed that she and the Veteran had reconciled and that she had lied for the purpose of being recognized as the surviving spouse for VA death benefits. Then in June and November 2011 she recanted her deposition testimony and claimed that she was so intimidated by the field examiner that she became distraught and confused and that as a result her answers were unreliable. Given that the appellant has offered numerous statements in support of her claim that are lacking in credibility, the Board places far more weight on the statements of the Veteran prior to his death in determining the circumstances surrounding their separation. As noted, such statements strongly support the conclusion that the appellant was not without fault for the separation. Under these circumstances, for the reasons and bases set forth above, the Board concludes that the most credible and probative evidence weighs strongly against finding that the appellant was not without fault for the separation. Therefore, the preponderance of the evidence is against the claim, and it is denied. ORDER The appellant is not recognized as the Veteran's surviving spouse for the purpose of entitlement to Department of Veterans Affairs death benefits. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs