Citation Nr: 1817305 Decision Date: 03/20/18 Archive Date: 03/30/18 DOCKET NO. 09-42 341A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUE Whether the appellant may be recognized as the surviving spouse of the Veteran for purpose of receiving VA death benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from March 1966 to November 1969. He served in combat in the Republic of Vietnam and was wounded in action. The Veteran died in May 2007. The appellant seeks to be recognized as his surviving spouse This issue comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. This case was previously before the Board in July 2014 and February 2016 at which times it was remanded for further development. Following the requested development, the VA Appeals Management Center in Washington, D.C. continued to deny the claim. Thereafter, the case was returned to the Board for further appellate action. FINDINGS OF FACT 1. The Veteran and the appellant were married in February 1975 and had children born of the marriage. 2. The Veteran and the appellant had not been cohabitating for at least seven years prior to his death due to mutual conflicts. CONCLUSION OF LAW The appellant does not meet the criteria to be recognized as the Veteran's surviving spouse for the purpose of receiving VA death benefits. 38 U.S.C. §§ 101(3), 103, 1304 (2012); 38 C.F.R. § § 3.50, 3.52, 3.53 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Prior consideration of the merits of an appeal, VA has a duty to notify the claimant of the information and evidence necessary to substantiate a claim for VA benefits and to assist claimants in obtaining that evidence. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). After reviewing the record, the Board finds that VA has met that duty. Generally, the claimant has a responsibility to present and support a claim for VA benefits. 38 U.S.C. § 5107 (2012). VA has a duty to notify the claimant of the information and evidence necessary to substantiate a claim for VA benefits and to assist claimants in obtaining that evidence. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. In October 2007, VA appropriately notified the appellant of the information and evidence needed to substantiate and complete her claim for dependency and indemnity compensation. VA then obtained identified and available evidence and provided the appellant an opportunity for a hearing before the Board. There is no evidence of any VA error in notifying or assisting the appellant in the development of her claim; and therefore, the Board will proceed to the merits of the appeal. VA death benefits, including dependency and indemnity compensation, may be awarded to a veteran's surviving spouse based on the circumstances of the veteran's death. 38 U.S.C. §§ 1310, 1541; 38 C.F.R. § 3.312. The preliminary question, therefore, is whether the appellant is the surviving spouse of the Veteran. After carefully considering the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against such a finding. The term "surviving spouse" means a person of the opposite sex 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, and after September 19, 1962, 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.A. § 101(3). 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). There is a two-part test to determine whether a spouse will be deemed to have continuously cohabited with the veteran when there has been a separation. Not only must the spouse be free of fault at the time of the separation, but it must be found that the separation was due to the misconduct of, or procured by, the veteran. In assessing the reasons for a separation between a veteran and his or her spouse, fault or the absence of fault is to be determined based on an analysis of conduct at the time of the separation. Gregory v. Brown, 5 Vet. App. 108 (1993). 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. 38 C.F.R. § 3.53(b). The evidence shows that the Veteran and the appellant were married in February 1975 and that children were born of the marriage. The Veteran died in May 2017. At the time of his death, the Veteran and the appellant were not divorced. According to the death certificate, he was a resident of the state of Florida. The death certificate lists the Veteran as married but separated. The Veteran was seen for a VA examination in August 2002. He reported being separated from his spouse for four and a half years. The Veteran stated that she left him because she was unhappy. The Veteran denied any history of domestic violence. In August 2003, the Veteran was seen for a VA compensation examination. He reported that he had been separated from his spouse for five years. The Veteran reported a sense of sadness and loss because he did not wish for her to leave. He denied having a girlfriend or attempting to have an intimate relationship with anyone. The examiner noted that aside from his daughter and a fishing buddy the Veteran did not appear to have any other relationship. The Veteran self-estimated his level of esteem as a 3 out of 10. When queried why the Veteran stated that he probably should have gotten counselling earlier, and that "maybe my wife (would not) have left." The Veteran noted that one of the reasons his wife left was because the Veteran was socially avoidant. In June 2007 the appellant stated that she and the Veteran had been separated due to his health and convenience as he could not bear the harsh winters. The appellant noted that the Veteran had provided her with health insurance and. other support, because she had stayed in New York. In September 2014, the appellant stated that her marriage to the Veteran had started off very pleasantly but that it turned turbulent due to his unruly behavior and increased drinking. She noted that she had sought help from a support group familiar with problems of alcohol abuse. She noted the Veteran's declining health, posttraumatic stress disorder, and his frustration with being unable to do things he once took pleasure in. She also noted that the Veteran did not accept her encouragement to attend the support group and that they eventually separated. The appellant further stated that during her separation from the Veteran, he had informed her that he was relocating to Florida to escape the harsh winters that greatly affected and worsened his health conditions. She noted being unable to accompany him due to her job and the need to raise their daughter who was just finishing high school. However, she reported that they stayed close in an effort to resolve their problems. A review of the evidence, such as treatment records from Adirondack Rehabilitation Medicine and VA, dated in July 2001 and August 2002, and the report of an August 2002 VA psychiatric examination, show that the Veteran had been living alone at the couple's New York address as late as February 2000, approximately a year and a half after his daughter's graduation from high school. He reported that his wife had left him, stating she was unhappy. In July 2001, the Veteran acknowledged that used to drink a lot but that he had quit about a year earlier. During his August 2002 VA psychiatric examination, he stated that he drank rarely. Such records further suggest that the Veteran did not go to Florida until October 2001. He reportedly did so for his health and would return to New York in the spring. Such contemporaneous evidence with its history reported for treatment purposes has greater probative value than subsequent statements made for compensation purposes. Harvey v. Brown, 6 Vet. App. 390 (1994). This is particularly significant in light of the fact that during the Veteran's August 2002 VA psychiatric examination, the examiner found the Veteran credible. Indeed, the examiner stated that the Veteran did not attempt to exaggerate symptoms or misrepresent himself Given the appellant's acknowledgement of turbulence in her marriage and the contemporaneous medical records suggesting that she had left the Veteran because she was unhappy, the Board finds that the appellant was not free from fault at the time of her separation from the Veteran. While the Veteran acknowledged his increased drinking until approximately July 2000, the evidence shows that he gained control of that situation. In fact, the preponderance of the evidence shows that he continued to return to the address he had shared with the appellant for many years after the appellant left him. Significantly, there is no evidence of, nor allegation of, domestic violence or abuse on the part of the Veteran. In August 2017, VA requested that the appellant and two other persons provide additional information regarding the appellant's marriage to the Veteran and whether they had continuously cohabitated prior to his death. To date, VA has received no response to that request. That lack of response tends to militates against the appellant's claim. See, e.g., Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). Given the appellant's acknowledgement of turbulence in her marriage, the contemporaneous medical records suggesting that the appellant left the Veteran, the long period of separation for at least seven years prior to the Veteran's death, and the appellant's failure to respond to VA's request for additional information, the Board finds the preponderance of the evidence against the appellant's claim of entitlement to recognition as the Veteran's surviving spouse. In this regard, the appellant is not found to be free of fault at the time of the separation, and there is no evidence that the separation was due to the misconduct of, or procured by, the Veteran. The Veteran did not seek the separation, the appellant initiated the separation, and there is no evidence of misconduct, such as physical or emotional abuse on the part of the Veteran towards the appellant that prompted the separation. In the opinion of the Board being unhappy, and wanting the Veteran to seek mental health care may warrant a temporary separation, but those factors in light of the totality of the record do not rise to a level of misconduct which justify the appellant's prolonged lack of marital cohabitation in the years prior to the Veteran's death. Accordingly, the appeal is denied. In reaching this decision the evidence preponderates against finding that the separation was due to the misconduct of, or procured by, the Veteran. As noted, the contemporaneous evidence shows that it was the appellant who left the marital relationship, and while it is true that the Veteran had some problem with alcohol, it cannot be said that the separation was due to the misconduct of, or procured by, the Veteran. Finally, the Board has considered the doctrine of reasonable doubt. However, that doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves the claim. In this case, because the preponderance of the evidence is against the appellant's claim, the doctrine of reasonable doubt is not applicable. 38 U.S.C. § 5107(b) (2012) ; 38 C.F.R. § 3.102 (2017). ORDER Entitlement to recognition as the Veteran's surviving spouse for the purpose of entitlement to VA death benefits is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs