Citation Nr: 18154946 Decision Date: 12/03/18 Archive Date: 11/30/18 DOCKET NO. 18-33 611 DATE: December 3, 2018 ORDER Entitlement to Dependency and Indemnity Compensation (DIC) Benefits, death pension, and accrued benefits based on the Appellant’s status as surviving spouse of the Veteran is denied. FINDING OF FACT The Appellant and the Veteran were not continuously cohabitating at death, and the separation was not due to the misconduct of, or procured by the Veteran. CONCLUSION OF LAW The criteria for entitlement to a finding of surviving spouse status for the purpose of eligibility for VA death benefits are not met. 38 U.S.C. §§ 101, 5107 (2012); 38 C.F.R. §§ 3.1, 3.50, 3.52, 3.53, 3.54, 3.102 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Marine Corps from September 1980 to September 1983 and in the Army from September 1990 to March 1991. The Veteran died in May 2017. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Duties to Notify and Assist As a preliminary matter, the Board has reviewed the electronic claims file and finds there exist no deficiencies in VA’s duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159/ (b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). Entitlement to DIC Benefits based on the Appellant’s status as surviving spouse of the Veteran. The Appellant seeks recognition as the Veteran’s surviving spouse for the purpose of eligibility for VA death benefits (DIC, death pension, and accrued benefits). 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 (2017). 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) (2017). 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) (2017); 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 evidence does not establish that the Appellant meets the criteria of surviving spouse. The balance of evidence does not support that the Veteran and Appellant were continuously cohabitating at the time of the Veteran death. The record reflects the Veteran and the Appellant were married in September 1978 and there is no evidence that they divorced prior to the Veteran’s death. Statements submitted by the Appellant, her son (“from someone else”), and her daughter in law indicate the she and the Veteran separated in March 1991 and remained separated until the date of death. The Appellant stated that she separated from the Veteran due to financial difficulties as the Veteran mismanaged his funds. She also noted that she has lived separate and apart from the Veteran since March 1991 until the time of his death in May 2017. Based on the foregoing, the Board finds the Veteran and the Appellant were separated at the time of his death and that the separation was not due to the misconduct of, or procured by, the Veteran. The Board also concludes that the separation was not by mutual consent and was not for the purposes of convenience, health, business, or any other reason which did not show intent on the part of the surviving spouse to desert the Veteran. (Continued on the next page)   As such, the claim cannot be substantiated as a matter of law and must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law). KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. McDuffie, Associate Counsel