Citation Nr: 1803409 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 10-34 466 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to recognition as the Veteran's surviving spouse for purposes of establishing eligibility for Department of Veterans Affairs (VA) death benefits. REPRESENTATION Appellant represented by: Sergio L. Jasso, Attorney WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD A. Dean, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to January 1968. He died in August 2008. The Appellant seeks entitlement to VA benefits as his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In February 2014, the Veteran testified at a videoconference hearing before an Acting Veterans Law Judge who has since retired from the Board; a transcript is of record. In a June 2014 decision, the Board denied the claim. The Appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). By Order dated October 2015, the Court vacated the Board's decision and remanded the matter to the Board for compliance with the instructions included in the October 2015 Joint Motion for Remand (JMR) by the parties. The Board remanded this case several times for adjudication in accordance with the JMR, most recently in May 2017. In compliance with the May 2017 Remand directives, the Appellant testified before the undersigned at an August 2017 Travel Board hearing; a transcript is of record. Following the hearing, the record was held open for 30 days for the submission of additional evidence; no evidence was received. FINDINGS OF FACT 1. The Veteran and the Appellant were in a common law marriage as of April 1985, and remained married until the death of the Veteran in August 2008; the Appellant has not remarried since his death. 2. Prior to the Veteran's death, the Veteran and Appellant did not cohabitate continuously, due to mutual consent of the Veteran and the Appellant and for reasons which did not show an intent on the part of the Appellant to desert the Veteran. CONCLUSION OF LAW The Appellant has met the criteria for recognition as the Veteran's surviving spouse for VA death benefit purposes. 38 U.S.C. §§ 101 (3), 1102, 1304, 1310, 1311, 1541, 5107 (2012); 38 C.F.R. §§ 3.1(j), 3.50, 3.54, 3.205 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The threshold question in this case is whether the Appellant is a proper claimant to receive VA death benefits as the surviving spouse of the Veteran. Governing law provides that benefits may be paid to the surviving spouse of a veteran if certain requirements are met. 38 U.S.C. §§ 1102, 1304, 1310, 1311, 1541 (2012). A "surviving spouse" is defined as a person 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), 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. § 101 (3) (2012); 38 C.F.R. § 3.50 (2017). The surviving spouse of a qualified veteran is eligible to receive death benefits (i.e., DIC, compensation, accrued benefits, or pension) if the surviving spouse was married to the veteran for one year or more. 38 C.F.R. § 3.54(a). To qualify as a surviving spouse, the person's marriage to the veteran must meet the requirements of either 38 C.F.R. § 3.1(j) or 38 C.F.R. § 3.52. 38 C.F.R. § 3.50(b). Under 38 C.F.R. § 3.1(j), a marriage is defined as "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 C.F.R. § 3.1(j); see 38 U.S.C. § 103(c). Regarding continuous cohabitation, under 38 C.F.R. § 3.53, there must be continuous cohabitation from the date of marriage to the date of death of the veteran except where the evidence shows that any separation was due to the misconduct of, or procured by, the veteran without the fault of the surviving spouse. Temporary separations which ordinarily occur will not break the continuity of the cohabitation. 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, businesses, 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. Based on a careful review of the record, the Board finds that the Appellant qualifies as the surviving spouse of the Veteran for purposes of receiving VA death benefits. First, a September 1989 Administrative Decision by the Regional Office is of record, determining that a common law marriage existed between the Veteran and the Appellant since April 25, 1985. While the Veteran's death certificate indicates he was divorced, several court inquiries of record show no evidence of filings for divorce on the part of either the Veteran or the Appellant. See November 2008 and September 2009 Correspondence. The Appellant does not indicate, and the evidence does not reflect, that she has remarried or has held herself out openly to the public to be the spouse of another person. Accordingly, the Appellant is shown to meet the eligibility requirements based on her common law marriage. 38 U.S.C. §§ 101 (3), 1102; 38 C.F.R. §§ 3.50, 3.54. Second, as the Veteran and the Appellant lived separately for many years before he died, the crucial issue presented in this case is whether the Appellant meets the "continuous cohabitation" requirement to be deemed a surviving spouse for VA purposes. The RO denied the Appellant's claim for death benefits on the basis that she did not satisfy the continuous cohabitation requirement in her marriage to the Veteran. It was noted that a May 2003 statement signed by the Veteran and submitted by his sister indicated the Appellant "walked out on [the Veteran]" in May 2001, and that the Veteran did not know the Appellant's whereabouts or if she planned to return. The statement indicated the Veteran was in poor health and left alone until his sister intervened and took him to California. The RO noted the Veteran submitted another statement in May 2003 indicating that he was separated and that the Appellant had abandoned him. Since the RO decision, the Veteran's sister submitted a statement indicating the Appellant abandoned the Veteran and was living with another man. She stated that when she went to retrieve the Veteran in May 2001, he had lost over 50 pounds, had hardly anything to eat or drink in the house, and his medications had not been filled for months. The Appellant submitted several lay statements, as well, from friends and her nephew who stated that she and the Veteran specifically denied plans to divorce while they were living apart, and that while they lived together, the Appellant took good care of the Veteran. See September 2009 and May 2010 Buddy Statements. At an August 2017 Board hearing, the Appellant testified that the allegations made by the Veteran's sister were untrue. Specifically, she stated she assisted with the Veteran's personal and health needs at home, noting there were no concerns on the part of his caretakers or from a VA medical perspective that he was not receiving proper care. She denied living with another man, and noted that his medical records supported the fact that he had not lost weight or gone without medication. The Appellant testified that several weeks after the Veteran went to visit his sister in May 2001, her son and another woman were murdered in the Appellant's home. She stated that due to the murders, including an investigation and numerous court appearances, she and the Veteran decided he would remain in California for a while, until they could make alternative arrangements. The Appellant stated that their plan was for the Veteran to return home at some point, but that in the interim, she checked on and reminded him of his various medical appointments and kept in touch with him over the telephone. She testified that they never discussed divorce, and that she visited him once, but that she continued to be affected by her son's death long after and did not think she could properly care for the Veteran. After further consideration of the evidence, the Board also finds that the Appellant meets the definition of a surviving spouse for the purpose of establishing entitlement to VA death benefits. The Appellant was the spouse of the Veteran at the time of his death, and it has not been shown that the Appellant has remarried or has held herself out to be the spouse of another. The Appellant acknowledges, however, that she and the Veteran had not lived continuously from approximately May 2001 until the date of the Veteran's death in August 2008. Nevertheless, the most probative evidence of record supports that the separation was due to mutual consent of the Veteran and the Appellant and for reasons which did not show an intent on the part of the Appellant to desert the Veteran. While the Veteran's sister testified that the Appellant did not properly care for the Veteran, VA records dispute her allegations. The Appellant's testimony citing her son's murder in their home, the investigation and court proceedings, and the lingering effects of the murder on her ability to care for the Veteran are credible. The Board also notes the Appellant submitted several credible statements from her friends and her nephew regarding their intention to move back together and not divorce. Viewing the evidence in a light most favorable to the Appellant, the Board finds that the Appellant's and Veteran's separation initially may be viewed as by mutual consent and for reasons related to the Appellant's son's death, which did not show an intent on the part of the Appellant to desert the Veteran. The Board concludes that the Appellant's marriage to the Veteran was valid for VA purposes and that she meets the definition of a surviving spouse for the purposes of entitlement to death benefits under 38 C.F.R. § 3.54. Recognition of her as the Veteran's surviving spouse for VA purposes is warranted. 38 C.F.R. §§ 3.50, 3.54. ORDER The appeal seeking recognition of the Appellant as the surviving spouse of the Veteran for the purpose of establishing entitlement to VA death benefits is granted. ____________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs