Citation Nr: 18160317 Decision Date: 12/27/18 Archive Date: 12/26/18 DOCKET NO. 14-34 577A DATE: December 27, 2018 ORDER Entitlement to recognition as the surviving spouse of the deceased Veteran for VA benefits purposes is granted. FINDINGS OF FACT 1. The Veteran and the appellant were married in April 1970; the Veteran filed for divorce in 1987, but the divorce was never finalized; and neither the Veteran nor the appellant remarried after the separation. 2. The evidence of record shows that the Appellant’s separation from the Veteran was by mutual consent, and there was no intent on the part of the surviving spouse to desert the Veteran. CONCLUSION OF LAW The criteria for entitlement to recognition as the surviving spouse of the deceased Veteran for VA benefits purposes have been satisfied. 38 U.S.C.A. §§ 101, 1102, 1304, 1541; 38 C.F.R. §§ 3.1 (j), 3.50, 3.53, 3.54. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1965 to December 1969. He died in September 2009. The appellant in this case seeks recognition as his surviving spouse for purposes of entitlement to VA death benefits. The claim was most recently before the Board in July 2017, the Board denied this claim. In response, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a May 2018 Order, the Court vacated the Board’s July 2017 decision and remanded the claim to the Board for further development and readjudication consistent with terms of a Joint Motion for Remand (Joint Motion). Entitlement to recognition as the surviving spouse of the deceased Veteran for VA benefits purposes The appellant contends that she should be recognized as the surviving spouse of the Veteran for VA death benefit purposes. The Board finds that the evidence supports recognition of the appellant as the surviving spouse of the Veteran. 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.A. §§ 1304, 1310, 1311, 1318, 1541. 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.A. § 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 April 1970 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 Board had previously denied the appellant’s claim in an August 2016 decision. That decision was vacated and remanded by the Court in May 2017 for further discussion, specifically, so that the Board could further address its finding that the appellant was partially at fault for her separation. In the July 2017 decision, The Board found that the evidence of record suggested that the appellant was at least partially at fault for the marriage separation. The parties to the Joint Motion agreed that the Board did not consider certain evidence that may show that the break in cohabitation was not the appellant’s fault or adequately address whether the separation “show[ed] an intent on the part of the surviving spouse to desert the veteran.” The record shows that in May 1987 the Veteran petitioned for divorce due to irreconcilable differences. He listed the date of separation as November 13, 1984. In his August 2002 claim for compensation, the Veteran reported that he was married but that he had been separated since November 1984 due to irreconcilable differences. In a May 2008 claim for compensation, the Veteran reported that he was divorced and that his marriage ended in 1984. He listed his sister as his nearest relative. In an undated Veteran Information Form from the Vet Center, the Veteran listed his marital status as married and separated. Another undated Vet Center record under the heading of post-military history stated “infidelity in marriage – he left. Have been separated 23 years.” An August 2005 assessment noted the Veteran’s history of incarceration due to substance abuse. During an April 2009 VA examination, the Veteran reported that he married in 1971 and that he and his wife separated after 14 years of marriage because they could not get along with each other. He stated that they could not divorce because they were strict Catholics. At that time, he reported that since the separation he has had no contact with his wife at all. The Veteran died in September 2009. The death certificate listed the appellant as his wife. In April 2010, the appellant claimed that she and the Veteran were married but separated three times. She stated that the Veteran filed for divorce but never followed through with it because he wanted her to pay for it. She stated that she received no child support or alimony from the Veteran. In a statement received in May 2015, a former neighbor of the appellant and Veteran wrote in support of the appellant’s claim stating that she recalled the Veteran complaining that “he always was broke because kids cost money.” She recalled the couple arguing and the Veteran increasingly staying away from the home. She stated that she helped the appellant move after an eviction, and she recalled being told by the appellant that the Veteran told her “he wasn’t coming back, that he wanted a separation.” She also recalled the appellant being told by others that they saw the Veteran “drinking and even going out with other women.” In a September 2016 statement, the appellant said that “[the Veteran] and I did decide to separate. We were not getting along and our daughters were in the middle of our conflicts.” She indicated that the Veteran had been having problems keeping jobs. She asserted that she did not desert the Veteran. After a careful review of the evidence of record, the Board finds that the appellant meets the definition of “surviving spouse” for VA benefit purposes. The evidence shows that the appellant and Veteran married in 1970, separated in November 1984, and remained separated until his death. That marriage, however, does not automatically render her a “surviving spouse” for VA benefits purposes. The appellant did not live continuously with the Veteran since marriage, but the Board finds that the Appellant’s separation from the Veteran was by mutual consent, and there was no evidence in the record of an intent on the part of the surviving spouse to desert the Veteran. As noted above, when determining whether a separation was due to the misconduct of, or procured by, the veteran without the fault of the surviving spouse, the statement of the surviving spouse as to the reason for the separation will be accepted in the absence of contradictory information. 38 C.F.R. § 3.53 (b). In this case, there does not appear to be any contradictory information or evidence. The Board again finds that a fair reading of the appellant’s statements indicates that both she and the Veteran were active participants in their interpersonal conflicts, leading up to a mutual decision to separate. However, none of the statements in the record indicate any intent on the part of the appellant to desert the marriage. Rather, Vet Center treatment records clearly document the Veteran’s statement that he left the marriage. Further, the Veteran initiated – but never finalized – divorce proceedings, which indicated an intent on his part rather than the appellant to end the marriage. And treatment records show the Veteran had a history of incarceration due to substance abuse, supporting the appellant’s contention that periods of separation were procured by the Veteran without her fault. Additionally, there is no evidence that the appellant ever remarried or lived with another person and held herself out openly to the public to be the spouse of another person. Under these circumstances, despite the lengthy separation between the appellant and the Veteran prior to his death, VA regulations direct the Board to the conclusion that the continuity of the cohabitation was unbroken. 38 C.F.R. § 3.53 (b). Considering the foregoing, the Board finds that the evidence supports recognition of the appellant as the surviving spouse of the Veteran. M. E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jack S. Komperda, Counsel