Citation Nr: 1431998	
Decision Date: 07/16/14    Archive Date: 07/22/14

DOCKET NO.  09-38 441	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Whether the appellant is entitled to recognition as the Veteran's surviving spouse prior to April 27, 2010.


REPRESENTATION

Appellant represented by:	Scott Holcomb, Attorney

Appellee represented by: Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

Appellant DCC, Appellant's daughter CC, and Appellee DAC (since deceased)


ATTORNEY FOR THE BOARD

A. Fagan, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1968 to November 1976.  The Veteran died in September 1999.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2008 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) that revoked the appellant's (DCC) entitlement to DIC and recognized the appellee, DAC, as the Veteran's surviving spouse.  The appellant, DCC, asserts on appeal that she is the Veteran's surviving spouse.

The appellant (DCC) testified before the RO's Decision Review Officer (DRO) in June 2009 and before the undersigned Veterans Law Judge in December 2009 in a Travel Board hearing; the appellee (DAC) did not testify before the undersigned, but her representative attended the hearing and provided a statement.  In addition, the appellee (DAC) had provided testimony before a Veterans Law Judge in March 2007 during the course of her appeal, which was subsequently granted by the June 2008 RO decision.  Transcripts of all hearings are of record.

The appellee (DAC) died in April 2010.  Her daughter, TMW, subsequently filed a request for substitution, and has been recognized as the substitute appellee for the purpose of resolving the issue on appeal.  The Board notes that TMW has submitted a claim for accrued benefits, which is being held at the RO pending resolution of the issue on appeal before the Board.

The Board issued a decision in October 2012 that held appellant DCC to have been the Veteran's lawful surviving spouse since April [redacted], 2010, the date that appellee DAC died (thus terminating DAC's potential entitlement to VA survivor benefits).  The Board's action did not decide the question of who should be recognized as the Veteran's surviving spouse prior to that date, but rather remanded that issue to the RO for further development.  The Board again remanded the claim in October 2013.

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 appellee, DAC, did not continuously cohabitate with the Veteran from the date of their marriage until his death, and was not without fault in their separation.

2.  Prior to her death, the appellee, DAC, did not qualify as a surviving spouse of the Veteran. 

3.  Prior to April 27, 2010, the appellant was the lawful surviving spouse for DIC purposes.


CONCLUSION OF LAW

The appellant, DCC, is recognized as the Veteran's lawful surviving spouse for DIC purposes prior to April 27, 2010.  38 U.S.C.A. §§ 101, 103(a) (West 2002); 38 C.F.R. §§ 3.1, 3.50, 3.52, 3.53, 3.205 (2013).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (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) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a).

As a grant of benefits to the appellant would result in a denial of benefits to the appellee, this case qualifies as a "contested claim."  See 38 C.F.R. § 20.3(p) (defining contested claim).  A "contested claim" is subject to special procedural regulations as set forth in 38 C.F.R. §§ 19.100, 19.101, 19.102, and 20.713(a).  In this case, all interested parties will be specifically notified of the action taken by the agency of original jurisdiction in a simultaneously contested claim and of the right and time limit for initiating an appeal, as well as hearing and representation rights. 38 C.F.R. § 19.100.  In this case, both the appellant and the appellee were notified by separate letters in July 2008 of the action being taken by the RO, more specifically, that the appellee was being recognized as the surviving spouse.  They were also informed of their hearing and representation rights.  The appellee was also notified in May 2009 that the appellant had requested a hearing in her appeal, and during a December 2009 Travel Board hearing, the appellee's representative was present, in addition to the appellant and her representative.  

As the Board is restoring the appellant's status as a surviving spouse, she is not prejudiced by any deficiency in VA's duty to notify or assist.  The Board also finds that the appellee has been provided with adequate notice and that there is no prejudice to her by appellate consideration of the appellant's claim at this time.  The appellee has presented evidence, written arguments, testified at a prior hearing, and arguments were submitted from her representative as well.  The evidence on file does not indicate nor does the appellee contend that there remains any additional evidence available for review.  There is no indication in the record that any additional evidence relevant to the issue to be decided herein is available but not part of the claims file.  

Turning now to the merits, in an unappealed October 2012 decision, the Board determined that the appellant, DCC, and the Veteran had a marriage deemed valid, and that the appellant is recognized as the Veteran's surviving spouse for purposes of DIC benefits for the period since April 27, 2010.  It was further noted that the appellant's marriage may be deemed valid for the period prior to April 27, 2010, thereby entitling her to recognition as the Veteran's surviving spouse for DIC purposes for that period, if the Board concludes that "no claim has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits other than accrued monthly benefits covering a period prior to the veteran's death."  See 38 C.F.R. § 3.52; see also 38 C.F.R. § 3.205.  

Following a careful review of the record, the Board does conclude that, prior to April 27, 2010, no claim had been filed by a "legal surviving spouse," as the appellee, DAC, did not qualify as a "surviving spouse" for purposes of DIC benefits.  

Pursuant to 38 U.S.C. § 1310, the Secretary shall pay DIC to a "surviving spouse" of a qualifying veteran who died from a service-connected or compensable disability.  See Barela v. Peake, 22 Vet. App. 155, 157 (2008).  As relevant here, a surviving spouse is a person (1) validly married to the Veteran at the time of the Veteran's death, (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 the fault of the spouse)," and (3) "who has not remarried or ... 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. § 101(3); see 38 C.F.R. § 3.50(b) (2013); see also 38 C.F.R. § 3.54(c) (2013).

Here, the Board finds that the appellee, DAC, could not be recognized as a "surviving spouse" prior to April 27, 2010, because she did not continuously cohabitate with the Veteran from the date of their marriage in September 1970 to the date of his death in September 1999.  See 38 U.S.C.A. § 101(3); 38 C.F.R. § 3.50(b).  On the contrary, it is uncontested that the Veteran and DAC had not lived together since around September 1976.  The appellee testified that she left the Veteran "for the last time" in September 1976 while they were in Illinois, and that she had lived in Maryland since 1979.  In contrast, the Veteran's separation DD Form 214 shows that he was living in Brooklyn, New York upon separation from service in November 1976, and lived in New York until moving to Georgia around 1997, where he resided with the appellant, DCC, until his death in September 1999.  Thus, there is no dispute that the Veteran and the appellee, DAC, did not physically cohabitate continuously from the date of their marriage in September 1970 until the Veteran's death in September 1999.

The Board further finds that the requirement of continuous cohabitation is not otherwise met due to any exception, as the evidence does not show that the 1976 separation between the appellee, DAC, and the Veteran was temporary, was without intent to desert on the part of the appellee, or "was due to the misconduct of, or procured by, the veteran without the fault of the spouse."  38 U.S.C. § 101(3); see 38 C.F.R. §§ 3.50(b)(1), 3.53 (b).  In this regard, temporary separations due to the fault of either party will not break continuity of cohabitation.  38 C.F.R. § 3.53(a) (2013).  Moreover, in Alpough v. Nicholson, 490 F.3d 1352 (Fed.Cir.2007), the Federal Circuit made clear that a person may qualify as a surviving spouse if the separation was procured by the Veteran-even in the absence of misconduct by the Veteran-or was procured by mutual agreement, where the spouse had no intent to desert the Veteran.  490 F.3d at 1358.  

First, the evidence does not show that the separation in 1976 was temporary or intended to be temporary.  On the contrary, the record shows that the appellee left the Veteran in 1976, and never again resided with the Veteran or believed that they were married prior to his death.  In this regard, the appellee testified that she was under an ongoing belief that they were divorced, and that she did not subsequently identify the Veteran as a spouse on documents, such as when she purchased a house in 1991.  The Veteran appeared to have been under a similar belief, as in 1979, he claimed his father as a dependent, but did not claim a wife, and on a February 1980 form relating to VA education/training benefits, the Veteran indicated he was divorced.  While the appellee testified that there were a few temporary separations during their marriage between 1970 and 1976, she has not disputed that she and the Veteran did not ever live together or get back together as a couple after she left in 1976.  Therefore, the Board finds that the separation in 1976 was not temporary.  

Second, to the extent the Veteran's report on an August 1978 claim for VA benefits that he and the appellee were married but separated because they could not get along suggests a mutual separation, the more probative evidence supports that there was a definite intent to desert on the part of the appellee, DAC, when she left him in 1976.  In this regard, she testified in March 2007 that it was she that moved out, and left the Veteran while he was at work without his knowledge.  Such an action is not indicative of a mutually agreeable separation.  The appellee also testified that she filed for divorce in Illinois, and that the Veteran contested the divorce, also suggesting that the separation was not entirely mutual.  Most probative and indicative of an intent to desert, however, is the appellee's own testimony that she kept her whereabouts hidden from the Veteran after leaving him.  She specifically testified that, after leaving the Veteran, she instructed her family and friends not to disclose where she was (also reported by friend GD in a June 2006 statement), and that she essentially had no contact with the Veteran from 1980 until 1999.  Further, as stated, the appellee testified that she was under an ongoing belief that they were divorced, and that she did not subsequently identify the Veteran as a spouse on documents or where otherwise indicated.  Such evidence certainly suggests an intent to desert the Veteran, and in no way supports a mutual separation.  

Third, the evidence does not show that the separation was due to the Veteran's misconduct without fault of the appellee.  On the contrary, evidence shows that the appellee, DAC, was at least partially at fault for the separation, notwithstanding misconduct on the Veteran's part.  For example, an October 1976 in-service hospital treatment records shows that, according to the Veteran, he had been experiencing marital difficulties for two months secondary to his working two jobs and "his wife staying out late."  He further reported that she was insulting and demeaning to him because he was away from home so much, presumably due to his military duties and working an extra job due to financial difficulty.  The Board also finds relevant evidence in the service records that, although the appellee was a college graduate, she was not working and was staying out late while the Veteran worked two jobs to support them financially.  Additionally, the Veteran's twin brother, AC, and his wife, CC, have submitted competent lay statements dated in June 2009 attesting to their first-hand knowledge of the appellee being physically abusive towards the Veteran during their marriage, reporting that she punched him in the face and "would strike [the Veteran] without cause."  The Veteran's twin brother also stated that the appellee's "violent behavior was a factor in their separation," that the appellee abandoned the Veteran several times during their marriage, and that he had to console his brother on numerous occasions.  

The Board recognizes the appellee's claims that she left the Veteran due to his violent and abusive behavior, and her assertion that it was the Veteran's behavior that was the cause for their separation.  Generally, 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).  Here, however, there is contradictory information, namely, the foregoing October 1976 service record documenting the Veteran's contemporaneous report made in furtherance of treatment, that the appellee was insulting and demeaning, and the June 2009 lay statements of AC and his wife, CC, that the appellee was violent with the Veteran.  The Board has no reason to doubt the credibility of the Veteran's brother, AC, or his wife, CC, particularly as they stand to gain nothing from their testimony, and there is nothing in the record that expressly contradicts their assertions.  Thus, the Board finds that the appellee was also at fault and contributed to the separation.

The Board also finds that the appellee's accounts of abuse are likely exaggerated.  In this regard, while the appellee testified that the Veteran was frequently physically abusive and gave her black eyes during their marriage, the Veteran admitted during treatment in October 1976 to hitting the appellee, but on only one occasion.  He did not report multiple instances or a pattern of physical abuse.  As he was willing to admit to the violence on one occasion while seeking mental health treatment, the Board finds it extremely likely that he would have been truthful, and admitted to a pattern or history of becoming physically violent had there been one.  The Board also notes that there are numerous lay statements of record dated in June 2009, including statements from the appellant, friend JM, son-in-law LB, and mother-in-law JB, providing competent and credible lay testimony that the Veteran was not a violent person.  Thus, the Board finds the appellee's statements regarding the extent of the abuse to likely be exaggerated.  See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (the credibility of a witness can be impeached by a showing of interest, bias, or inconsistent statements).

The Board observes that there is other evidence of record that calls into question the credibility of various assertions offered by the appellee in support of her claim.  For instance, while the appellee asserted that she and the Veteran had a child together - specifically, TMW, who has been substituted for appellee - and that the Veteran was aware of TMW's existence soon after her birth, the Board is not persuaded for a number of reasons.  First and most obvious, the birth certificate of TMW shows that she was born in October 1977, and the appellee testified that she was last with the Veteran in September 1976.  Thus, the laws of nature inherently preclude a finding that the Veteran is the biological father of TMW, as she was born over 12 months after the Veteran and appellee were last together.  Additionally, in a June 2009 statement, the Veteran's brother, AC, attested to the fact that the appellee told him "point blank that [the Veteran] was not the father of her children."  

The Board also finds credible the testimony of the appellant, the Veteran's daughter with the appellant, CC, and the Veteran's brother, AC, that the Veteran was not aware of any assertion that he was the father of a child with the appellee.  In this regard, while the appellee testified in March 2007 that the Veteran was aware that he had a child (TMW), the Veteran's family has testified otherwise, and stated 
that given the Veteran's nature, he would have taken care of the child if it was his and he was aware of her existence.  In support of that assertion is the Veteran's statement during September 1999 VA treatment, just prior to his death, that there were no children from his first marriage.  The record also shows that the Veteran lovingly raised a step-daughter as his own child, not even referring to her as a "step" child during September 1999 VA treatment.  In a June 2009 statement, the appellant's step-daughter, CAB, stated that while the Veteran was her "step father" by law, she felt otherwise, noting that he had raised her from "a baby all the way to adulthood" and that she would "not accept anything less than calling him my father."  To the extent that TMW's birth certificate lists the Veteran as the father, that was a self-report by the appellee, and the Veteran did not sign or otherwise acknowledge that he was the father of TMW on the birth certificate, or ever during his lifetime as shown by the credible evidence of record.  

The Board is also cognizant that the appellee testified in March 2007 that she 
and the Veteran "spoke several times during the course of our separation about reconciling," including in May 1999 when TMW graduated from college.  However, during the same hearing, the appellee testified that, prior to May 1999, she had not had contact with the Veteran since 1980.  Then, in contrast to that statement, she also testified that she and the Veteran spoke by phone in the 1980s.  Similarly, in a written statement in February 2006, the appellee stated that, after leaving, she tried to work out their differences because she was pregnant (which would mean sometime after January 1977 based on TMW's date of birth), and that they "lost touch for a while although [she] spoke with him once or twice after TMW was born" (in October 1977).  Then, in a separate statement of the same date, the appellee stated that "We only had contact through my family" and "we had no contact for years" until the Veteran's brother contacted her in 1999.  

Given the internal inconsistencies in the appellee's reports about her contact with the Veteran following their 1976 separation, the Board accords them no probative value.  See Caluza, supra.  Furthermore, given the numerous lay statements of record from various sources indicating that the appellant and Veteran had a happy and healthy marriage and was proud of his family (as also noted by a VA provider during September 1999 treatment), the Board finds the appellee's assertions that there were any conversations about reconciliation with the Veteran, including in 1999, or that he had any intent to reconcile, to be outweighed and unsupported. 

The Board notes that there are other inconsistencies of record that cast an overall shadow on the credibility of statements offered in support of the appellee's claim.  For instance, in a June 2006 statement, a friend of the appellee for 37 years, GD, indicated that when she saw the Veteran in 1999 at the graduation of TMW and found out that he was remarried, she "questioned the legality of the marriage since he was still married to [the appellee]."  She then went on to state that the Veteran's plans upon his return to Georgia "were to inform his current wife [DCC] that his divorce was never final."  However, by her own testimony, the appellee was under the continuing belief that she and the Veteran were divorced, and, as noted in a February 2006 written statement, she did not find out that there was a question as to whether there was a divorce decree until 2003 when she filed for Social Security (SSA) benefits.  Therefore, the Board finds it very unlikely that a friend of the appellee (who notably believed she was divorced), would have knowledge that there was a question as to finality of a divorce between the appellee and the Veteran four years prior to the appellee, herself, discovering that possibility.  Additionally, the Board notes that while GD stated in her June 2006 statement that it was she who called the Veteran in 1999 and learned of his death, and then informed the appellee of the same, the appellee provided contradictory testimony in March 2007, stating that she learned of the Veteran's death when she called his house at the request of her daughter, TWM.

Other less probative evidence that is contradicted elsewhere in the record includes a separate lay statement dated in February 2006, in which friends of the appellee, KG and JG, assert that the Veteran and appellee were married and together as husband and wife until May 1977, at which time they were in Illinois.  That allegation is contradicted by the appellee's testimony that she left the Veteran in September 1976, and by the Veteran's separation document showing that he separated from service in November 1976 and moved to New York.  The Board also notes that the appellee's date of birth listed on the marriage certificate she submitted in support of her claim is different from the one she provided on her VA claim for benefits, as well as that shown on her driver's license.  

In any event, the Board finds that the appellee, DAC, and the Veteran did not continuously cohabitate from the date of marriage in September 1970 to the Veteran's death in September 1999, and that any continuity of cohabitation was broken by the appellee's misconduct contributing to the separation and the appellee's subsequent actions evidencing an intent to desert the Veteran.  The Board has considered arguments by the appellee's representative that she is the legal surviving spouse because she was recognized as such by SSA and because no divorce decree has been found.  However, the Board is not bound by findings of SSA, and the lack of continuous cohabitation controls in this case.  Thus, the appellee is precluded from recognition as the surviving spouse.  See Alpough at 1357.  


As the appellee is precluded from recognition as the surviving spouse, she was 
not the legal surviving spouse at the time she filed her May 2005 DIC claim.  Therefore, the Board concludes that, prior to April 27, 2010, no claim had been filed by a "legal surviving spouse."  38 C.F.R. §§ 3.52, 3.205.  Therefore, prior to April 27, 2010, the appellant's marriage meets all of the criteria for a deemed valid marriage and she may therefore be recognized as the Veteran's surviving spouse for DIC purposes prior to that date.  38 C.F.R. § 3.52.  


ORDER

For the period prior to April 27, 2010, the appellant, DCC, is recognized as the Veteran's surviving spouse for DIC purposes.



____________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs