Citation Nr: 1626235	
Decision Date: 06/30/16    Archive Date: 07/11/16

DOCKET NO.  13-34 297A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

Whether the appellant has status as a surviving spouse of the Veteran for the purposes of dependency and indemnity compensation (DIC) benefits.


REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs


WITNESSES AT HEARING ON APPEAL

Appellant and her son



ATTORNEY FOR THE BOARD

C. Fields, Counsel


INTRODUCTION

The Veteran had honorable active service from January 1944 to November 1945.  He was a former prisoner of war (POW) and received a Purple Heart medal, among other decorations and awards.  The Veteran died in June 2009, and the appellant seeks Department of Veterans Affairs (VA) DIC benefits as his surviving spouse.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 determination by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.  The appellant was afforded a Board hearing, via videoconference from the RO, before the undersigned in May 2016.  

This appeal has been advanced on the Board's docket due to the age of the appellant.  38 U.S.C.A. § 7107(a)(2) (West 2014); 38 C.F.R. § 20.900(c) (2015).  


FINDINGS OF FACT

1.  The appellant and the Veteran were legally married for more than one year prior to his death in August 2009; they obtained a legal separation in October 1993.

2.  The separation was due to the Veteran's misconduct without fault of the appellant, and/or due to convenience without an intent to desert the Veteran.  



CONCLUSION OF LAW

The criteria for recognition as the Veteran's surviving spouse for the purposes of threshold eligibility for DIC benefits have been met. 38 U.S.C.A. §§ 101(3), 103(c), 1310, 5107 (West 2014); 38 C.F.R. §§ 3.1(j), 3.5, 3.50(b), 3.53, 3.54(c) (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The evidence clearly establishes that the Veteran and the appellant had a valid legal marriage beginning in 1967, and for many years prior to his death in August 2009, thereby meeting the valid marriage and timing requirement for DIC benefits.  See 38 U.S.C.A. § 1304; 38 C.F.R. § 3.54(c).  However, the appellant and Veteran were legally separated in October 1993 and did not live together from that time forward.  Generally, such a lack of continuous cohabitation will mean that an individual does not qualify as the surviving spouse of the Veteran.  See 38 C.F.R. § 3.50(b)(1).

Nevertheless, in this case, resolving reasonable doubt in favor of the appellant as required under applicable VA statutes and regulations, the Board finds that the separation between the Veteran and the appellant was due to misconduct by the Veteran without fault of the appellant.  Under these circumstances, applicable VA statutes, regulations, and case law provide that the lack of continuous cohabitation is not a bar to threshold eligibility as a surviving spouse of the Veteran.  See 38 U.S.C.A. § 5107 (resolution of doubt); 38 C.F.R. §§ 3.50(b)(1), 3.53.

Specifically, the appellant and her son testified in May 2016 that the only reason for the separation was the Veteran's misconduct toward the appellant.  This information had not been presented to the RO previously, but there is no reason to doubt their testimony in this regard.  Further, although the appellant was the petitioner in the legal separation proceedings, this did not constitute fault; and there is no evidence to suggest that the appellant was otherwise at fault in the separation.  One of the children of the Veteran and appellant indicated in a 2010 letter that they separated by mutual agreement, but did not give other details as to the reasons for separation.  

Moreover, resolving reasonable doubt in the appellant's favor, the evidence also establishes that the appellant and Veteran lived apart due to convenience, without any intent of the appellant to desert the Veteran.  This is another circumstance under which a lack of continuous cohabitation is not a bar to threshold eligibility as a surviving spouse of the Veteran.  38 C.F.R. § 3.53(b).  In particular, all six adult children of the Veteran and the appellant submitted letters in 2010 indicating that, although they legally separated after the children had completed college, the two of parents both continued to gather together with other family members for special occasions until the Veteran's death in 2009.  One of the daughters of the appellant and the Veteran (through prior marriages) indicated in a 2010 letter that the separation was essentially a business arrangement because the appellant continued to receive health insurance, Social Security, and flying privilege benefits through the Veteran.  The appellant and one of her sons testified similarly in 2016.

There is no suggestion that the appellant has remarried or lived and held herself out to be the spouse of another person since the Veteran's death.  38 C.F.R. § 3.50(b).

Thus, the criteria for threshold eligibility as the Veteran's surviving spouse are met, and the appeal is granted to this extent.  The RO must address further eligibility.    







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In this regard, the Board notes that the appellant checked "no" to whether she was seeking service connection for the cause of the Veteran's death in her August 2009 application for DIC benefits.  However, the appellant and her representative indicated during the May 2016 Board hearing that she was seeking service connection for the cause of the Veteran's death by stroke, asserting that this was related to his former POW status and/or to his service-connected anxiety disorder.


ORDER

The appellant qualifies as a surviving spouse of the Veteran for the purposes of threshold eligibility for DIC benefits; the appeal of this matter is granted.



____________________________________________
JAMES G. REINHART
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs