Citation Nr: 18148934 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-25 513 DATE: November 8, 2018 ORDER Status as surviving spouse for purposes of Dependency and Indemnity Compensation (DIC) is denied. FINDING OF FACT The appellant is not the Veteran’s surviving spouse for purposes of entitlement to VA benefits. CONCLUSION OF LAW The criteria for status as surviving spouse for purposes of DIC have not been satisfied. 38 U.S.C. §§ 101, 103, 1304, 1310, 1541, 5107; 38 C.F.R. §§ 3.1, 3.5, 3.50, 3.53, 3.54, 3.102. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 8, 1950 to November 25, 1953 and from September 3, 1954 to January 6, 1964. This case is before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision. 1. Status as surviving spouse for purposes of DIC The appellant seeks status as the Veteran’s surviving spouse for the purpose of eligibility for VA DIC benefits. The record indicates that the Veteran died on November [redacted], 2014. In order for the appellant to be recognized as a surviving spouse, the evidence must support that the claimant was the Veteran’s spouse at the time of death and that the claimant lived continuously with the veteran from the date of marriage to the date of the Veteran’s death. 38 U.S.C. §§ 101 (3), 5124(c) (2012); 38 C.F.R. §§ 3.205(a), 3.206. Marriage means 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). If the couple did not continuously cohabitate or was estranged or separated at death, VA must determine whether the separation was due to the misconduct of, or procured by the veteran without the fault of the spouse. See 38 U.S.C. § 101 (3); 38 C.F.R. §§ 3.53, 3.205(a)(6); Gregory v. Brown, 5 Vet. App. 108, 112 (1993); Alpough v. Nicholson, 490 F.3d 1352, 1358 (Fed. Cir. 2007). 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. See 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). 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 determining whether there was continuous cohabitation, the statements of the surviving spouse as to the reason for the separation will be accepted in the absence of contradictory information. Id. Moreover, the “without fault” requirement is not a continuing one; rather, the fault, or absence thereof, is to be determined based on analysis of conduct at the time of separation. See Gregory, 5 Vet. App. at 112. A separation by mutual consent does not constitute desertion unless the separation resulted from misconduct or communication of a definite intent to end the marriage by the surviving spouse. See Alpough, 490 F.3d at 1357. The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (noting that the Board may reject such statements of the appellant if rebutted by the overall weight of the evidence). The record indicates that the Veteran and the appellant were married in April 1978. A divorce decree was issued on March [redacted], 2014; however, subsequent court documents indicate that the divorce decree was rescinded and vacated, and that the complaint for divorce filed May [redacted], 2013 was dismissed with prejudice on June [redacted], 2015. However, the record shows that the Veteran and appellant have been separated and living apart since 1997. In November 1997 correspondence, the appellant stated that the separation was mutual and that she moved to North Carolina in June 1997 to receive medical attention for their son who had ADHD. She also noted that the Veteran had agreed to pay her $1200 per month but had not yet paid her anything. She requested an apportionment of the Veteran’s VA benefits. In March 1998, the RO approved the apportionment of $1000 per month of the Veteran’s VA benefits to the appellant for her support and the support of their son D.C. An April 1998 notice letter informed the appellant that the apportionment would be reduced to $500 when D.C. turned 18-years old in July 2002. In July 1998 correspondence, the Veteran notified the RO that their son D.C. was a ward of the State of Nevada, and had not been cared for by the appellant since he was removed from their home in May 1995. The Veteran therefore requested that the apportionment of benefits to the appellant be reduced to $500. Attached to the Veteran’s July 1998 correspondence is a juvenile court document verifying that D.C. was made a Ward of the Juvenile Court and placed in the custody of the Division of Child and Family Services in December 1995 due to being adjudicated a neglected child within the meaning of the law. At a hearing in May 1995 the appellant and the Veteran admitted to the allegations in the Petition. The Petition reflects that D.C. was in the care, custody, and control of his natural mother, [the appellant]; that the appellant’s and the Veteran’s use of alcohol adversely affects their ability to properly care for D.C. and D.C. has severe emotional and behavioral problems that the parents are unable and/or unwilling to deal with; that the appellant is continually being arrested for battery and domestic violence against D.C. or [the Veteran]. The RO subsequently reduced the appellant’s apportionment amount to $500. In an October 2009 statement, the appellant stated that she and the Veteran were married on April [redacted], 1978 and were separated in 1997 due to the Veteran’s violent behavior. She stated that she receives 500 dollars monthly due to separation from the Veteran and that the Veteran was living in their house in Nevada while she lived in North Carolina. The appellant stated that she went to ask him for financial help and that the Veteran told her he was in love with another woman and that the appellant deserved nothing. A February 2010 administrative decision granted an increased apportionment from 500 to 800 dollars. It indicates that the appellant requested an increased apportionment of the Veteran’s VA benefits, received September 25, 2009, and that she reported that the Veteran was living in the house they both own. It indicates that the evidence showed that the appellant was in financial need and that no evidence showed that it would create a financial hardship for the Veteran. As noted above, the Veteran passed away in November 2014. The appellant subsequently filed a DIC claim, which was denied by the RO because the record showed that the Veteran and appellant had divorced in March 2014. Following the denial, the appellant produced court documents showing that her March 2014 divorce from the Veteran had been vacated and dismissed in June 2015. In a January 2015 statement, the appellant stated that she and the Veteran lived together continuously from the date of their marriage until June 1997 when she moved to North Carolina to care for her parents. She stated that during that time, she and the Veteran owned a home together in Nevada where she returned to reside with him from March to June each year from 1997 until the date of his death. She stated that there was no legal separation, and that they remained married from the date of their marriage until the date of his death. She stated that there were no disputes or problems to settle between them and that their temporary separation was due only to the necessity of her parents needing her care. She stated that she and the Veteran never applied for divorce, annulment, nor legal separation, and that they continued their marriage until the date of his death. In a July 2015 statement, the appellant stated that she was not aware that she was divorced and that she was never notified or served any related paperwork. She stated that she contacted an attorney and determined that the divorce was not valid. A January 2016 administrative decision addressed the issue of whether continuous cohabitation existed for VA purposes between the Veteran and the appellant. It indicates that the appellant claimed that the separation reason was “a temporary separation due to the necessity of my elderly parents needing my care” and that the Veteran and the appellant resided together every year since 1997 from March to June. The decision indicates, however, that the Veteran attempted to end the marriage and the appellant did not live continuously with the Veteran from the date of their marriage until the date of his death. In a January 2016 notice of disagreement (NOD), the appellant stated that in 1997 she left their shared home in Nevada temporarily to care for her parents in North Carolina. She stated that she flew back home often to care for him and to visit. She stated that while she was away, the Veteran had numerous extramarital affairs and because of this he did not want her to return to live with him permanently. She stated that when she went to visit, his “girlfriends” would stay away. She stated that during this time she began to receive an apportionment from the VA as his spouse and that they had the same mailing address. She stated that the Veteran sent her funds to help supplement her income. She stated that she wanted to come back home to the Veteran and that during this time she was in North Carolina with her parents, the Veteran initiated divorce proceedings without her knowledge. VA treatment records from July 2010 indicate that the Veteran reported his marital status as “separated over 10 years” and listed his next of kin as his son and his sister. The medical record indicates that the Veteran has been separated from his wife for about ten years and that “she lives down South.” The medical record indicates that the “Veteran’s wife has a history of being abusive to Veteran” and that the Veteran stated that he plans to divorce his wife as soon as he is strong enough to meet with an attorney to start the paperwork.” VA treatment records from May 2014 indicate that the Veteran reported that he has never gotten a divorce but that he has been estranged from his wife for years. In a May 2016 NOD, the appellant stated that she had all intentions of moving back in with the Veteran but was delayed, and he died on November [redacted], 2014. She stated that in January 2004, after the death of her father, she moved back to Nevada and into the home she shared with the Veteran. She stated that in 2006, after a discussion with the Veteran, she decided to move to North Carolina and purchased a home with his help. She stated that she and the Veteran kept in touch at all times because her son resided with him at their house. In the October 2018 appellate brief, the appellant, through her representative, stated that she and the Veteran married in April 1978, eventually residing together in Las Vegas. In approximately 1997 they purchased a home together in North Carolina, and the appellant moved to that residence to care for her parents while the Veteran remained in their home in Nevada. The Veteran continued to support the appellant via an apportionment of his VA benefits. The appellant asserts that for several months of each year she and the Veteran lived together in the same residence. On March 17, 2014 the Veteran and the appellant were divorced, and the Veteran died on November [redacted], 2014. The death certificate lists the surviving spouse as the appellant, and she asserts that she is entitled to consideration as the Veteran’s surviving spouse. The appellant argues that the separation was premised on family needs and not on an intent on her part to dissolve the marriage. The representative stated that although a divorce decree was issued shortly before the Veteran’s death, it was rescinded by the court, and a review of the death certificate reflects that the appellant was under the impression that she was the Veteran’s spouse at the time of his death. The Board finds that there was not continuous cohabitation and the appellant’s stated reasons for living apart from the Veteran are outweighed by the probative evidence of record. Specifically, the Board affords more weight to the Veteran’s statements and actions during his lifetime and the apportionment afforded to the appellant during her separation from the Veteran. As discussed above, the Veteran was receiving an apportionment of the Veteran’s benefits. The Board finds that had the appellant’s separation from the Veteran been amicable, she would not have had to request nor receive an apportionment of the Veteran’s benefits. Also, as noted above, VA treatment records indicate that the Veteran reported multiple times that he and the appellant were not living together and that they had not lived together for many years because the appellant was abusive. This is consistent with the Juvenile Court records showing that the appellant was verbally and physically abusive to their son D.C. as well as to the Veteran. Additionally, the appellant has stated that the reason for the separation was due to a need to care for the appellant’s parents, but that is inconsistent with her other statements of record. For example, the appellant herself stated in the October 2009 statement that she and the Veteran were separated in 1997 due to the Veteran’s violent behavior. The record clearly establishes that the Veteran and the appellant were separated for many years prior to the Veteran’s death, and thus continuous cohabitation is not shown. There is no indication in the record that the appellant moved to North Carolina to care for her ailing parents, and there is likewise no indication that the appellant traveled back and forth to Nevada for several months at a time as she has previously stated. Moreover, it is clear that the Veteran and appellant were in dispute about the amount of apportionment the appellant deserved to receive, and in her November 1997 request for apportionment, the appellant fraudulently led the RO to believe that her son was living with her in North Carolina during a time when court documents show that he was a Ward of the State of Nevada at the time she moved to North Carolina in 1997 and first requested apportionment of benefits. The Board acknowledges that the court records show that a divorce decree was issued in March 2014 and was later rescinded in June 2015. However, the Board finds that even if the divorce is legally rescinded, it is not relevant for purposes of this decision as the dispositive issue in this case turns on whether there was continuous cohabitation between the Veteran and the appellant prior to his death. Based on the above, the Board finds that the appellant’s internally inconsistent statements regarding her reason for the separation are outweighed by the more probative evidence of record, namely the dispute regarding the apportionment of funds, the Veteran’s reports during his lifetime regarding separation from the appellant, and the court-documented abusive behavior of the appellant. (Continued on the next page)   In sum, the Board finds that the separation between the Veteran and the appellant was not due to the misconduct of the Veteran without fault of the spouse; and, that appellant and the Veteran did not continuously cohabitate for many years prior to his death. Therefore, the appellant cannot be deemed the “surviving spouse” for VA purposes. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Labi, Associate Counsel