Citation Nr: 1806154 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 12-33 122 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to recognition as the surviving spouse of the Veteran for purposes of establishing eligibility for death benefits administered by the Department of Veterans Affairs. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and D.S. ATTORNEY FOR THE BOARD Matthew Miller, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1963 to July 1966. The Veteran died in September 2009. The appellant seeks to establish status as the Veteran's surviving spouse for benefits purposes. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from a December 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. This appeal was previously before the Board in February 2017, when it was remanded in order to provide the appellant with the opportunity to have a hearing before the Board. In March 2017, VA sent notice of the newly scheduled Board hearing to the appellant at an address in Idamay, West Virginia. Later that same month, the appellant sent VA correspondence from a different address in Mannington, West Virginia. Regrettably, there was some confusion and the appeal was returned to the Board without the proper hearing having been scheduled. In August 2017, the Board again remanded the appeal in order to provide the appellant with the opportunity to have a hearing before the Board. In October 2017, the appellant testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Any future consideration of this appellant's case should take into account the existence of these records. FINDINGS OF FACT 1. The Veteran and the appellant married in August 1978 and they never divorced. 2. The Veteran died in September 2009. 3. At the time of death, the Veteran and appellant were not cohabitating. 4. The appellant and the Veteran did not live together continuously for the duration of their marriage and the evidence of record suggests that the appellant was at least partially at fault for the marriage separation. CONCLUSION OF LAW The appellant may not be recognized as the Veteran's surviving spouse for the purpose of receiving VA benefits. 38 U.S.C. §§ 101(3), 103 (2012); 38 C.F.R. §§ 3.50, 3.52, 3.53 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Board finds that VA's duties to the appellant under the Veterans Claims Assistance Act of 2000 (VCAA) have been satisfied. In December 2009, VA notified the appellant of VA benefits for survivors of the Veteran. VA also fulfilled its duty to assist the appellant in obtaining identified and available evidence needed to substantiate a claim. A statement of the case was subsequently issued in September 2012. No additional pertinent records are shown to be available, and the appellant does not argue otherwise. The appellant's statements in support of the claim are of record, including testimony provided at the hearing before the undersigned Veterans Law Judge. The Board hearing focused on the elements necessary to substantiate the claim and the appellant has demonstrated that she had actual knowledge of the elements necessary to substantiate the claim for benefits. Thus, the material issues on appeal were fully developed in accordance with 38 C.F.R. § 3.103(c) (2017). In sum, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c) (2017). Analysis Governing law provides that Dependency and Indemnity Compensation (DIC) benefits and non-service-connected death pension benefits may be paid to the surviving spouse of a veteran if certain requirements are met. 38 U.S.C. §§ 1304, 1310, 1311, 1318, 1541 (2012). For VA purposes, the term "surviving spouse" means 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. 38 U.S.C. § 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. 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). 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, 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. 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. 38 C.F.R. § 3.53(b). The evidence shows that the Veteran and appellant married in August 1978 and they had three children together during the marriage. They never divorced. The Veteran died in September 2009. At the time of death, the Veteran and appellant were not cohabitating. The Veteran applied for VA benefits in June 2004. On his application, he indicated that he was married, but not living with his wife, since September 2003. In July 2004, the Veteran provided a declaration of dependents, income, and net worth statement. This statement indicated that he was separated from his spouse, the appellant, due to "irreconcilable differences and abandonment." An August 2004 psychology consultation noted that the Veteran lives at "Scott's place" and that his wife left him sometime last year for another man. In September 2004, the Veteran was granted entitlement to non-service-connected disability pension benefits. An October 2004 notification letter clearly informed him that he was being paid as a single, with no dependents. In April 2008, VA sent the Veteran another letter advising him to notify VA of any changes in his dependents. A review of the record reveals that the Veteran did not report any changes and he died in September 2009. In October 2017, the appellant testified that she and the Veteran lived together in West Virginia until the early 2000s, which was around the time the Veteran began experiencing some psychiatric problems. The appellant stated that in August 2003, she moved to Florida for 6 months based on the stress of her marital situation and to assist her mother. The appellant indicated that while she was living in Florida, she did her best to support the Veteran financially, but ultimately could not afford the rent and the Veteran moved into a homeless shelter. The appellant then stated that she returned to West Virginia around April 2004, but at that point the Veteran was living with one of his children. The appellant also stated that upon her return to West Virginia, she did not get back together with the Veteran because "we finally were separated and started going on with our lives separately in that respect." Further to this point, the appellant testified that "I never wanted that to happen anyhow. We had a nice big wedding and three children and I just thought we'd grow old together." However, the appellant explained that at the time of the Veteran's death, she was not living with the Veteran but helped him find an apartment, where he lived for 3 years until his death. The appellant noted that while she did not live with the Veteran during this time, she did her best to support the Veteran and visited him during his illness and until his death. The appellant and D.S. also testified that the Veteran was difficult to live with and verbally abusive at times, but never physically abusive. The appellant and D.S. suggested that the Veteran's drinking problem was at least partially to blame for this behavior. After careful review of the evidence of record, the Board finds that the appellant is not the Veteran's "surviving spouse" for VA purposes because she and the Veteran did not continuously cohabitate from the date of marriage to the date of his death. Rather, the more probative evidence shows that while the appellant and Veteran married in August 1978 and had several children together, they separated in approximately September 2003 and remained separated until his September 2009 death. Although the appellant claims that she supported the Veteran financially and that they planned to "grow old together," her lay statements are contraindicated by the Veteran's statements for treatment purposes prior to his death, which contradict these assertions. Specifically, an August 2004 treatment report noted that his wife, the appellant, had left him for another man sometime in 2003. Additional benefits statements from June 2004 and July 2004 list him as single and cite "irreconcilable differences and abandonment" as the cause for his separation. When determining "surviving spouse" status in a situation where there has been no cohabitation, but the parties have not divorced, the question must be answered whether the Veteran was exclusively and totally at fault for the separation. "Fault" does not necessarily imply that the appellant behaved in any particularly egregious manner, or was the sole cause of the separation, but rather that the separation was due to some factors which may be attributed to the appellant. In this matter, the Board does not discount the Veteran's role in his separation, but does not find that the separation was entirely the fault of the Veteran. While the Veteran clearly had a substance abuse problem and some psychiatric issues, he did not completely desert his family. Instead, it was the appellant who moved away to Florida for 6 months while the Veteran was forced to spend time in a homeless shelter and later moved in with one of his children. Moreover, the appellant reported that her move to Florida was due to the stress of the relationship and she needed a break in order to care for her mother. Upon her return from Florida, the appellant testified that she did not reestablish her relationship with the Veteran because they had "started going on with our lives separately in that respect." Although the appellant reported multiple instances of contact between herself and the Veteran throughout their period of separation, there is no persuasive evidence of record showing that the appellant ever attempted to reconcile with the Veteran. The Board is cognizant of the appellant's statements that she tried to provide financial assistance when she could, but there is nothing to suggest that they ever cohabitated again. The Board acknowledges that the Veteran received some VA treatment for his apparent psychiatric issues and was hospitalized for substance abuse. However, there is no competent medical evidence in the record to suggest that the Veteran was violent or abusive. The evidence overall does not persuade that this was the reason for the separation. The separation appears to have been mutually decided on. In short, the Board finds that the evidence of record fails to show continuous cohabitation. Neither does it show that the appellant was completely and totally without fault in the decision to separate. In light of the above, the Board finds that the preponderance of the evidence is against the claim and the benefit of the doubt is inapplicable. 38 U.S.C. § 5107(b) (2012). Accordingly, the claim is denied. ORDER Entitlement to recognition as the surviving spouse of the Veteran for purposes of establishing eligibility for death benefits administered by the Department of Veterans Affairs is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs