Citation Nr: 18142261 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 07-14 662 DATE: October 15, 2018 ORDER Recognition as the surviving spouse of the Veteran for the purpose of entitlement to Dependency and Indemnity Compensation (DIC) benefits is denied. FINDINGS OF FACT 1. Concerning the appellant, all notification and development action needed to fairly adjudicate the appeal has been accomplished. 2. As the Board of Veterans’ Appeals (Board) finds the appellant not to be the surviving spouse of the Veteran, any notification and development deficiencies concerning the contested claimant, B.E., are harmless, as B.E. will continue to be recognized as the surviving spouse of the Veteran by the Department of Veterans Affairs (VA). 3. There was not continuous cohabitation between the appellant and the Veteran from their marriage until the Veteran’s death. 4. The separation between the appellant and the Veteran was not due to the misconduct of, or procured by, the Veteran. 5. The separation between the appellant and the Veteran 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. 6. The drafting, signing, notarizing, and serving of a May 1987 Complaint for divorce on the Veteran by the appellant showed the appellant’s intent to end the marriage. CONCLUSION OF LAW The criteria for recognition of the appellant as the surviving spouse of the Veteran for the purpose of entitlement to DIC benefits are not met. 38 U.S.C. §§ 101(3), 103, 1102, 1304, 1310, 1541, 5107(b) (2012); 38 C.F.R. §§ 3.1(j), 3.50, 3.53, 3.54, 3.102, 3.205 (2017); Alpough v. Nicholson, 490 F.3d 1352 (Fed. Cir. 2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant asserts that she is the surviving spouse of a veteran (the Veteran) who had active service from January 1969 to September 1972. The Veteran died in October 1996. This appeal comes to the Board of Veterans’ Appeals (Board) from a September 2006 rating decision of the RO in Baltimore, Maryland, which found that the appellant and the Veteran had been divorced. The appellant testified at a June 2009 Central Office hearing before the undersigned Veterans Law Judge (VLJ) in Washington, DC. A transcript of the hearing has been associated with the claims file. In July 2009, the Board remanded this appeal for further evidentiary development. In an August 2012 decision, the Board denied recognition of the appellant as the surviving spouse of the Veteran for the purpose of entitlement to DIC benefits. The appellant appealed the August 2012 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2014 Memorandum Decision, the Court vacated the Board’s decision and remanded the claim to the Board for readjudication. The Court, in pertinent part, held that the Board had not discussed the relevance, if any, of the appellant’s Social Security Administration (SSA) survivor benefits records and whether VA had a duty to obtain these records, and had not adequately discussed the relevant cohabitation law and Alpough v. Nicholson, 490 F.3d 1352 (Fed. Cir. 2007). Subsequently, in an October 2014 Remand, the Board remanded the issue on appeal to request any outstanding SSA records pertinent to the appellant’s claim for SSA survivor benefits. In August 2016, VA asked SSA to provide all records pertinent to the appellant’s claim for SSA survivor benefits. Subsequently, in August 2016, SSA informed VA that the records had been destroyed. VA then sent a letter to the appellant informing that the records were unavailable for review, and that all efforts to obtain these records had been exhausted, and requested that the appellant submit any such records in her possession. As the Board attempted to obtain the outstanding SSA records, which have been destroyed, as there does not appear to be any other avenue to obtain said records, and as the Board informed the appellant of these facts, the Board finds that remand order compliance is satisfied in the instant decision. Further, as the Board remanded to obtain any outstanding SSA survivor benefit records, and as the instant decision specifically addresses both the relevant cohabitation law and Alpough, the Board has met its responsibility to fully comply with the Court’s June 2014 order. See Forcier v. Nicholson, 19 Vet. App. 414 (2006) (holding that the duty to ensure compliance with a Court Order extends to the terms of the agreement struck by the parties that forms the basis of the JMR). In a May 2017 decision, the Board again denied recognition of the appellant as the surviving spouse of the Veteran for the purpose of entitlement to DIC benefits, and the appellant again appealed the denial to the Court. In an Order dated December 2017, the Court granted a Joint Motion for Remand (JMR), which remanded the issue on appeal back to the Board for development consistent with the JMR. Per the JMR, the parties agreed that the Board did not address whether VA had fulfilled its duty to notify all interested parties of the right to appeal in a simultaneously contested claim, nor did it ensure that proper notice had been provided to all interested parties prior to adjudicating the claim. In the instant decision the Board specifically addresses the issue of notification in a contested claim, and finds that 1) the appellant in this case has received proper notice and due process in the instant appeal, and 2) any deficiency in notice or due process as it concerns B.E. is harmless. As such, the Board has met its responsibility to fully comply with the Court’s December 2017 order. Since the issuance of the most recent supplemental statement of the case (SSOC), additional evidence has been received by the Board for which a waiver of initial RO consideration was provided in writing in an April 2018 statement from the appellant. 38 C.F.R. § 20.1304 (2017). The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Duties to Notify and Assist: Contested Claim Procedures As noted above, in the December 2017 JMR, the parties agreed that the Board had not provided sufficient reasons and bases for its finding that all notification and development action needed to fairly adjudicate the appeal had been accomplished. Specifically, the parties agreed that the Board needed to address whether VA had fulfilled its duty to notify all interested parties of the right to appeal in a simultaneously contested claim, and to ensure that proper notice had been provided to all interested parties prior to adjudicating the claim. Initially, the Board notes that it originally found that “all notification and development action needed to fairly adjudicate the appeal has been accomplished” in its August 2012 decision. In a July 2013 Court brief, the appellant argued that the Board had committed VCAA errors when it 1) failed to obtain relevant Social Security Administration Records (SSA), and 2) failed to provide appellant with adequate VCAA notice concerning the question of continuous cohabitation. No argument was made by the appellant before the Court at that time concerning a defect in contested claims procedures. As such, the appellant arguably abandoned on appeal any question of error in the duty to notify all interested parties of the right to appeal in a simultaneously contested claim. See Ford v. Gober, 10 Vet. App. 531, 535 (1997) (claims not argued on appeal are deemed abandoned). Even if the question of proper contested claim notification and procedure was not abandoned on appeal, by waiting until yet another decision had been issued by the Board in May 2017 before raising the purported contested claim procedure deficiency, the policy against piecemeal litigation has been violated. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (“Court will [not] review BVA decisions in a piecemeal fashion”); Fugere v. Derwinski, 1 Vet. App. 103, 105 (1990) (“Advancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court. Such a practice hinders the decision-making process and raises the undesirable specter of piecemeal litigation.”), aff’d, 972 F.2d 331 (Fed. Cir.1992); see also Gen. Elec. Co. v. Int’l Trade Comm’n, 692 F.3d 1218, 1220 (Fed. Cir.2012) (quoting McLish v. Roff, 141 U.S. 661, 665-66, 12 S.Ct. 118, 35 L.Ed. 893 (1891) (“From the very foundation of our judicial system the object and policy of the acts of congress in relation to appeals and writs of error... have been to save the expense and delays of repeated appeals in the same suit, and to have the whole case and every matter in controversy in it decided in a single appeal.”)). Despite the above, per the December 2017 JMR, the Board will now address the question of adequate notification in a contested claim procedure. At the outset, the Board notes that the instant matter falls under the contested claim umbrella as two people, the appellant and B.E., claim to be the Veteran’s legal surviving spouse. VA Adjudication Procedure Manuel (M21 1) In the December 2017 JMR, the parties agreed that the Board did not address whether the RO developed this contested claim in accordance with the VA Adjudication Manual (M21 1). The Board is not bound by procedural, non-substantive provisions of the M21 1. 38 C.F.R. § 19.5 (“The Board is not bound by [VA] manuals, circulars, or similar administrative issues.”). See DAV v. Sec’y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017) (there is no notice-and-comment rulemaking for [M21-1] revisions; the M21-1 is an internal manual used to guide VA adjudicators and does not establish substantive rules; and noting that the Board is not bound by the M21-1); see also Gray v. Sec’y of Veterans Affairs, 875 F.3d 1102, 1108 (Fed. Cir. 2017) (affirming the Federal Circuit’s position in DAV, 859 F.3d at 1077, that the Board is not bound by M21-1 positions because they are not “substantive” under the Administrative Procedures Act). However, the Board acknowledges that, although the M21-1 is not binding upon the Board, it is a source often consulted by the Board. See Burton v. Wilkie, No. 16 2037 (September 28, 2018) (citing to DAV, 859 F.3d at 1077, and Gray, 875 F.3d at 1106). Further, in Overton v. Wilkie, the Court recently held that when considering the M21 1 the Board must independently review the matter the M21-1 addresses, and must provide reasons and bases for relying on M21-1. No. 17-0125 (September 19, 2018). M21 1, Part III, Subpart vi, Chapter 6.A. concerns the proper procedures in a contested claim, including notification requirements; however, as will be discussed below, special procedural regulations are applicable in simultaneously contested claims. As such special procedural regulations exist, having conducted an independent review of the M21 1, the Board finds that it need not rely on the sub-regulatory, procedural M21 1 in determining whether appropriate contested claims procedures were followed in the instant matter. Appellant Contested Claim Due Process Procedures First, the Board will address whether the appellant received appropriate contested claim due process procedures during the course of this appeal. Special procedural regulations are applicable in simultaneously contested claims. All interested parties are to be specifically notified of the action taken by the agency of original jurisdiction in a simultaneously contested claim, and of the right and time limit for initiating appeal, as well as both hearing and representation rights. 38 C.F.R. § 19.100 (2017). In September 2006, VA sent the appellant a letter informing that the DIC claim had been denied because the evidence showed that the appellant and Veteran were divorced. Enclosed with the letter was a VA Form 4107, which explained the appellant’s appeal rights. As such, the Board finds the requirements of 38 C.F.R. § 19.100 satisfied as to the appellant. Next, after a Notice of Disagreement (NOD) has been filed in a simultaneously contested claim, all interested parties are to be furnished with a copy of the Statement of the Case (SOC). 38 C.F.R. § 19.101 (2017). The record reflects that the appellant was sent a copy of the SOC in March 2007. Further, the appellant also received all subsequently issued SSOCs. Pursuant to 38 C.F.R. § 19.102 (2017), when a substantive appeal is filed in a simultaneously contested claim, the content of the substantive appeal is furnished to the other contesting parties to the extent that it contains information which could directly affect the payment or potential payment of the benefit which is the subject of the contested claim. As B.E. has not filed a substantive appeal in the instant matter, this regulation is irrelevant as it pertains to the appellant. Finally, under VA regulatory criteria, if a hearing is scheduled for any party to a simultaneously contested claim, the other contesting claimant and their representative, if any, will be allowed to present opening testimony and argument; the appellant will then be allowed an opportunity to present testimony and argument in rebuttal. 38 C.F.R. § 20.713(a) (2017). As B.E. did not request a hearing in the instant matter, this regulation is irrelevant as it pertains to the appellant. Further, as will be discussed below, the appellant had a hearing before the Board concerning the issue on appeal in June 2009. For these reasons, the Board finds that all relevant contested claim due process procedures were followed as to the appellant. As such, the Board finds remand to initiate further contested claim due process procedures, as to the appellant, to be unwarranted. B.E. Contested Claim Due Process Procedures Review of the record reflects that B.E. did not receive proper contested claim notice under 38 C.F.R. § 19.100 02 and 38 C.F.R. § 20.713(a); however, that does not automatically mean that remand for the issuance of adequate notice is necessary and/or warranted. Here, remand would only be warranted if B.E. would face prejudicial error absent such a remand and issuance of contested claim notice. See Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009) (holding that the rule of prejudicial error requires a case-by-case determination as to whether the error in question caused prejudicial harm); 38 U.S.C. § 7261(b)(2) (2012) (the Court shall “take due account of the rule of prejudicial error”). While the Board appreciates the appellant’s concern for whether B.E. received adequate notice in the instant matter, the record reflects that any notice or due process deficiency in contested claims procedures toward B.E. is harmless. Specifically, as will be explained below, B.E. has been recognized as the Veteran’s surviving spouse for VA benefits purposes since the Veteran’s death in October 1996, and B.E. continues to receive VA benefits as the surviving spouse. In the instant decision, the Board finds the appellant not to be the surviving spouse of the Veteran. As such, upon the issuance of this decision, B.E. will continue to be recognized as the surviving spouse of the Veteran, and B.E. will continue to receive the VA benefits to which she is entitled; therefore, any contested claim notice deficiency as it relates to B.E. is harmless. For these reasons, the Board does not find remand to initiate further contested claim due process procedures necessary or warranted. Absolutely no harm will come to B.E. if the Board decides the instant matter at this time. Rather, remand for the issuance of contested claim notice would only serve to harm B.E. by causing further unnecessary delay in the final adjudication of a matter that has been adjudicated multiple times and developed and appealed for more than a decade. Duties to Notify and Assist: DIC/Status as Spouse In the context of a claim for dependency and indemnity compensation (DIC) benefits, which includes a claim of service connection for the cause of a veteran’s death, § 5103(a) notice must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Unlike a claim to reopen, an original DIC claim imposes upon VA no obligation to inform a DIC claimant who submits a nondetailed application of the specific reasons why any claim made during the deceased veteran’s lifetime was not granted. Where a claimant submits a detailed application for benefits, VA must provide a detailed response. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). In an October 2006 letter, the RO provided notice regarding what information and evidence is needed to substantiate a claim for service connection for the cause of the Veteran’s death, as well as what information and evidence must be submitted by the appellant, and what evidence VA would obtain. Although notice compliant with Hupp was not provided, the Board finds that there is no prejudice to the appellant in this case. The question at issue is not whether the Veteran died from a service connected disability. That has already been established. The sole question remaining is the appellant’s qualification as the surviving spouse of the Veteran. The Court has held that the provisions of the VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Mason v. Principi, 16 Vet. App. 129 (2002); see also VAOPGCPREC 5-2004 (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). Here, as is addressed below, the issue on appeal must be denied at law as the appellant does not meet the continuous cohabitation requirement necessary to warrant recognition as the surviving spouse of the Veteran for purposes of entitlement to DIC benefits. When conducting a hearing, a Veterans Law Judge must suggest that a claimant submit evidence on any issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. See Bryant v. Shinseki, 23 Vet. App. 488 (2010); 38 C.F.R. § 3.103 (2016). The Veterans Law Judge also must suggest the submission of evidence when testimony during the hearing indicates that it exists (or could be reduced to writing) but is not of record. Here, during the Board hearing, the appellant’s assertions were discussed in detail, and additional evidence and additional development was ordered on remand to obtain records identified at the hearing. Such actions supplement the VCAA and comply with 38 C.F.R. § 3.103. Moreover, through hearing testimony and written submissions, the appellant has demonstrated actual knowledge of the type of evidence necessary to substantiate the claim. The Court has held that actual knowledge of the evidence needed to substantiate a claim is established by statements or actions by the claimant or the claimant’s representative that demonstrate an awareness of what is necessary to substantiate a claim. Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007); see also Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes copies of all available records pertaining to the appellant’s marriage to the Veteran, certifications from various jurisdictions, including Maryland, Virginia, Georgia, Florida, New Jersey, and the District of Columbia, that no divorce was on record, and the appellant’s written assertions and hearing testimony. During the most recent remand, VA attempted to obtain any outstanding SSA records. Unfortunately, as discussed above, any such SSA records have been destroyed and are unavailable. The Board acknowledges that a VA medical opinion has not been obtained; however, the Board finds that a VA opinion is not necessary in order to decide this claim. The Board notes that the duty to obtain a medical opinion under 38 U.S.C. § 5103(d) is inapplicable to DIC claims because the provision specifically states it only applies for “disability compensation.” See DeLaRosa v. Peake, 515 F. 3d 1319 (Fed. Cir. 2008). Nevertheless, in Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008), the Federal Circuit further clarified DeLaRosa indicating that while § 5103(d) is inapplicable to DIC claims, the provision of § 5103(a) still requires VA to make “reasonable efforts” to provide assistance if requested, to include obtaining a medical opinion. VA is excused from this obligation when “no reasonable possibility exists that such assistance would aid in substantiating the claim.” 38 U.S.C. § 5103(a)(2). Here, the Board finds that a medical opinion is not necessary to decide service connection for the cause of the Veteran’s death, as there remain no questions regarding the relationship between the Veteran’s death and service. The sole remaining question is whether the appellant is the surviving spouse of the Veteran. The Board finds that no reasonable possibility exists that a medical opinion would aid in substantiating the claim. All relevant documentation has been secured or attempted to be secured and all relevant facts have been developed. There remains no question as to the substantial completeness of the record as to the issue on appeal. 38 U.S.C. §§ 5103(a), 5103A, 5107; 38 C.F.R §§ 3.102, 3.159, 3.326(a). Any duties imposed on VA, including the duties to assist and to provide notification, have been met as set forth above. Basic Eligibility for VA Death Benefits Law and Regulation Only eligible applicants are entitled to VA benefits. The appellant in this case seeks recognition as an eligible applicant as the Veteran’s surviving spouse in order to obtain DIC benefits. A surviving spouse may qualify for dependency and indemnity compensation if the marriage to the veteran occurred before or during his service or, if married to him after his separation from service, (1) before the expiration of 15 years after the termination of the period of service in which the injury or disease causing the death of the veteran was incurred or aggravated, or (2) for 1 year or more, or (3) for any period of time if a child was born of the marriage, or was born to them before the marriage. 38 U.S.C. §§ 1102, 1304, 1541; 38 C.F.R. §3.54. The term “surviving spouse,” except as provided in 38 C.F.R. § 3.52 (2017), means a person whose marriage to the veteran meets the requirements of 38 C.F.R. § 3.1(j) and who was the spouse of the veteran at the time of the veteran’s death. 38 C.F.R. § 3.50(b). Additionally, the surviving spouse of a veteran must have lived with the veteran continuously from the date of marriage to the date of the veteran’s death except where there was a separation that was due to the misconduct of, or procured by, the veteran without the fault of the spouse in the case of temporary separations. 38 C.F.R. § 3.50(b)(1). 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. 38 C.F.R. § 3.53(a). 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 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). Separation by mutual consent generally does not constitute desertion by a potential surviving spouse, such that a claimant is exempted from the continuous cohabitation requirement under 38 C.F.R. § 3.53(b) for the purpose of establishing recognition as the surviving spouse for death benefits. Alpough v. Nicholson, 490 F.3d 1352, 1357 (Fed. Cir. 2007). Under a proper interpretation of 38 U.S.C. § 101(3), a spouse can qualify as a surviving spouse if a separation was “procured” by the Veteran without the fault of the surviving spouse, even if there was no misconduct by the Veteran. Alpough at 1357. Therefore, under a proper interpretation of section 3.53(b), a separation by mutual consent, without an intent to desert, does not break the continuity of cohabitation. Alpough at 1358. A separation by mutual consent, however, would constitute desertion if the separation was induced by misconduct or communication of a definite intent to end the marriage by the surviving spouse; thus breaking the continuity of cohabitation and precluding surviving spouse recognition in such instance. Alpough at 1357. The absence of fault on the part of the surviving spouse is to be determined solely at the time of the separation; conduct subsequent to that time is relevant only to the extent that it illuminates the question of fault at the time of the separation. Alpough at 1357. The Board has thoroughly reviewed all the evidence in the claims file and adequately addresses the relevant evidence in the instant decision. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Marital History A Georgia marriage license reflects that the appellant and the Veteran were married in October 1982. Subsequently, in May 1987, the appellant signed a Complaint for Absolute Divorce (One Year Separation) (Complaint) to be filed at the Superior Court of the District of Columbia. Per the Complaint, the appellant was residing in Washington, DC, and the Veteran was living in Bladensburg, Maryland. According to paragraph seven, the two resided together as husband and wife until October 1, 1984, when they separated and ceased cohabitating, without interruption, since that time. In other words, the appellant advanced in the public court filing that the two had been living separately for approximately two and a half years. The Complaint was signed (subscribed and sworn) before a notary public. The Veteran signed a copy of the Certificate of Service, which indicates that the Complaint was served upon the Veteran. In June 1987, the Veteran signed an Answer to Complaint for Absolute Divorce (Answer). Per the Answer, the Veteran admitted to everything alleged by the appellant in the May 1987 Complaint, including the separation and uninterrupted cessation of cohabitation since October 1984. The answer was signed (subscribed and sworn) before a different notary public. In January 1988, VA received a benefits claim from the Veteran. The Veteran listed marital status as divorced and noted divorcing a J.M. in 1976. No mention was made of a current spouse. Per the application, the Veteran’s home address was located in Bladensburg, Maryland, which is the same address noted in the May 1987 Complaint for divorce. Further, in a July 1990 VA treatment record, the Veteran reported being divorced. VA received a marriage certificate from the state of Florida showing that the Veteran married B.E. in February 1993. Per the marriage certificate, the Veteran had been married twice previously, with the last marriage ending in divorce in 1985. In July 1996, VA sent a letter informing the Veteran that service connection for multiple myeloma, secondary to Agent Orange exposure, was granted. Further, the letter stated that the Veteran was being paid as a single veteran with no dependents. Subsequently, in July 1996, the Veteran filed a VA Form 21 686C, Declaration of Status of Dependents, stating that the Veteran was married to B.E. in February 1993 in Florida and requesting that she be added as a dependent. The Veteran did not include any information about previous marriages. Subsequently, in August 1996, VA sent the Veteran a letter asking for public records showing that the Veteran’s previous marriages ended in divorce. In response, in August 1996, the Veteran sent VA a copy of the aforementioned 1987 Complaint and Answer, referring to them as a divorce decree. In September 1996, VA received a notarized letter from the Veteran. Per the letter, the Veteran advanced being unable to handle his personal affairs, and he asked that his wife, B.E., be named as fiduciary. In a corresponding September 1996 statement, the Veteran requested that B.E. be named as fiduciary as his service connected disability was worsening, it was becoming difficult to sign documents and handle personal affairs, and it was not expected that the Veteran would live much longer. VA subsequently received a letter from a private physician in October 1996. Per the treatment letter, it was noted that the Veteran’s cancer had spread and that the Veteran was now bedridden. The doctor advanced that B.E. had to quit working in order to act as a caregiver. An October 1996 Direct Deposit Sign Up Form reflects that, just prior to death, the Veteran was residing in Kissimmee, Florida. This was the same address as B.E., as noted in the October 1996 burial benefits application discussed below. A death certificate from Florida reflects that the Veteran died in October 1996. Per the death certificate, B.E. was the surviving spouse of the Veteran. The certificate also reflects that B.E. and the Veteran lived at the same address in Kissimmee, Florida. A funeral home bill from October 1996 reflects that B.E. paid for the Veteran’s final expenses. Further, in a corresponding October 1996 notarized letter drafted on the funeral home’s stationary, B.E. noted that she was the Veteran’s surviving spouse, next of kin, and beneficiary of the Veteran’s life insurance policy. VA received a VA Form 21 530, Application for Burial Benefits, from B.E. in October 1996. Per the application, B.E., the Veteran’s spouse, paid the final expenses of $3,360. Per a corresponding October 1996 VA Form 119, Report of Contact, VA spoke with B.E. about the Veteran’s death and requested that they be sent a copy of the Veteran’s death certificate. In addition to requesting burial benefits, in October 1996, B.E. filed a VA Form 21 534, Application for Dependency and Indemnity Compensation, Death Pension and Accrued Benefits by a Surviving Spouse or Child (Including Death Compensation if Applicable), as the surviving spouse, and requested service connection for the cause of the Veteran’s death. Service connection for cause of death was granted in a November 1996 rating decision, with B.E. named as beneficiary. A SSA Application for Widow’s or Widower’s Insurance Benefits reflects that the appellant sought SSA Widow’s Benefits in May 2000, over three and a half years after the Veteran’s death. The appellant advanced marrying the Veteran in October 1981, with the marriage ending upon the Veteran’s death in October 1996. Accompanying the May 2000 SSA application was the Veteran’s and appellant’s marriage certificate and a March 2000 Certificate from the Superior Court of the District of Columbia Family Division noting that no decree of divorce or annulment of marriage was on record concerning the Veteran and appellant. The appellant was subsequently granted Widow’s Benefits in February 2001. The Board notes that there would have been no reason for the appellant to have filed the March 2000 Certificate along with the Widow’s Benefits claim unless she knew that the Veteran was remarried and anticipated that B.E. had filed first. Subsequently, in January 2004, SSA received a new Application for Widow’s or Widower’s Insurance Benefits in B.E.’s name. B.E. advanced marrying the Veteran in February 1993, with the marriage ending in October 1996 upon the Veteran’s death. It is unclear if the benefits were subsequently granted or if any investigation was conducted by SSA concerning the two marriages, as any such records have since been destroyed due to age. The record contains an undated “Authorization to Release Medical and Legal Information (Full Copy of the Death Certificate for [Veteran])” apparently drafted and signed by the appellant. Per the document, the appellant purported to authorize the Office of Vital Statistics in Florida to release to her a copy of the Veteran’s death certificate and “medical records of the cause of death.” Further, the appellant requested that the Veteran’s death certificate be amended to have her name replace B.E.’s name. The appellant indicated that the aforementioned certificate from the Superior Court of the District of Columbia Family Division should be sufficient to warrant the amendment. The Board notes that, had the appellant made the Veteran’s final funeral arrangements and established at that time that she was the Veteran’s surviving spouse, she would not have needed to make such a legal request to amend the death certificate years later. In February 2006, the appellant, claiming to be the Veteran’s widow, sent a request to VA for “any information on the claim that was filed by the late [Veteran] and myself on Agent Orange.” The appellant also requested copies of the Veteran’s treatment records from 1969 to the date of death. The appellant noted not receiving any benefits after the Veteran’s death. According to the record, the appellant was living in Maryland at that time. The appellant was provided with a copy of the Veteran’s claims file by VA in July 2006. In July 2006, the appellant, again claiming to be the surviving spouse of the Veteran, filed a VA Form 21 534, Application for Dependency and Indemnity Compensation, Death Pension and Accrued Benefits by a Surviving Spouse or Child (Including Death Compensation if Applicable), requesting service connection for the cause of the Veteran’s death. In the application, the appellant noted that she was already receiving SSA survivor benefits. Further, the appellant advanced being married to the Veteran from October 1982 until the date of the Veteran’s death. The appellant indicated in the request that she was having some financial difficulties. In October 2006, VA received a statement from the appellant indicating that she and the Veteran never divorced. The appellant advanced that she and the Veteran were married in “Fulton Country George” [sic] and that they lived in “Atlantic Greogea, Filton Country” [sic]. The appellant noted that records from the Superior Court in Washington, DC, were negative for a divorce decree between her and the Veteran. The appellant’s representative filed a brief in November 2008. Per the brief, the appellant and Veteran moved to Washington, DC, from Georgia, after they began having marital problems. While the two did sign and notarize divorce documents, the documents were never filed with the Superior Court in Washington, DC, and the divorce was never finalized. Court records from Washington, DC, New Jersey, Florida, and Georgia all reflect that no divorce decree was ever issued. The representative went on to argue that the Veteran’s marriage to B.E. was not valid because the divorce from the appellant was never finalized. Court records from Washington, DC, Maryland, Virginia, Georgia, and New Jersey reflect no finalized decree of divorce was ever filed in those states. As such, it appears that, despite the Veteran being married to B.E., the Veteran may not have divorced the appellant at the time of death. As such, the primary question before the Board is whether the Veteran and the appellant continuously cohabitated from the date of marriage to the date of the Veteran’s death. The appellant has offered two arguments as to why the continuous cohabitation requirement has been met. First, any temporary separations were due to the misconduct of the Veteran without the fault of the appellant. Second, any temporary separations were by mutual consent and the parties lived apart for purposes of convenience, health, and business. Having reviewed all the evidence of record, the Board finds that the weight of the evidence demonstrates that, regardless of the status of the appellant’s marriage to the Veteran at the time of death, there had not been continuous cohabitation between the two of them from the date of marriage to the date of the Veteran’s death, and the requirements for qualification of the appellant as the surviving spouse of the Veteran are not met. Further, the Board finds that the separation was not due to the misconduct of, or procured by, the Veteran, 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. The Board notes that factual summary and analysis is primarily the same as it was in its prior May 2017 decision. In July 2018, the Board received a new brief from the appellant’s representative, with additional lay statements from the appellant and other individuals. The Board has specifically considered the representative’s arguments and all of the new lay statements; however, upon considering of all the evidence of record, the Board does not find the new arguments and lay statements to be persuasive, and no revision to its previous analysis is warranted. Whether Separation Due to Misconduct by Veteran As noted above, the appellant has advanced that any temporary separations during the course of her marriage to the Veteran was due to the misconduct of the Veteran. Specifically, she alleges that during the separations the Veteran was living a double life with a woman that the appellant thought was the Veteran’s sister. Having reviewed all the evidence of record, the Board finds the weight of the evidence to show no misconduct on the part of the Veteran. In an April 2007 statement, the appellant advanced being the legal wife of the Veteran due to the lack of any record of a divorce decree. The appellant went on to give a very confusing account of things between her and the Veteran. She also referred to B.E. as the Veteran’s “sister” and said she (appellant) and the Veteran had previously attended a cookout at B.E.’s home. The appellant also seemed to indicate that the Veteran lived with her in Virginia for the two years prior to death. This would not be possible, as the evidence of record reflects that the Veteran was living in Kissimmee, Florida, for the last two years of his life. The appellant’s representative filed a brief in November 2008, which argued that B.E. was initially introduced to the appellant as the Veteran’s sister in 1992. The Veteran was out of town regularly, and when he needed to go to the hospital the Veteran would tell appellant that B.E., the Veteran’s “sister”, would be driving him to and from his medical appointments in Kissimmee, Florida. The Veteran would come home to the appellant in St. Petersburg, Florida, between treatments. The representative surmised that the Veteran was living a double life with both the appellant and B.E. Notwithstanding this statement, the appellant testified at a June 2009 Central Office hearing. At that time, the appellant testified to meeting B.E. on or about 1990 or 1991 at the Veteran’s family home in Richmond, Virginia. The appellant testified that B.E. was introduced as the Veteran’s sister, and that B.E. introduced the appellant to the whole town because she and the Veteran had been married for so long. As such, based upon the appellant’s testimony, not only did she and B.E. know each other, but B.E. was actively pretending to be the Veteran’s sister while she pursued a relationship with the Veteran. To the contrary, in July 2014, B.E. sent the RO a letter along with VA mail intended for the appellant that was improperly sent to her address. According to B.E., she was the widower of the Veteran, she did not know who the appellant was, and she did not know the appellant’s whereabouts. In the event VA had any questions, B.E. provided her home phone number and invited VA to contact her should VA have any questions. The appellant’s June 2009 testimony and B.E.’s July 2014 letter are in direct contradiction; therefore, the Board must conduct a credibility analysis. B.E.’s Credibility Having reviewed all the evidence of record, the Board finds B.E. to be credible. As discussed above, when the Veteran’s health began deteriorating to the point where he was unable to handle his personal affairs, the Veteran specifically asked VA to name B.E. as fiduciary. Further, as reflected in an October 1996 letter from a private physician, B.E. quit working so that she could become a full-time caregiver to the Veteran. When the Veteran later died in October 1996, it was B.E. who took care of the Veteran’s funeral arrangements and final expenses. During the course of this appeal, VA contacted B.E. and asked for additional information concerning her marriage to the Veteran. B.E. was helpful and, in an August 2008 statement, she informed VA that many of the Veteran’s personal records were destroyed during Hurricane Charlie; however, B.E. reported first filing for DIC in 1996 and receiving benefits starting in January 1997. She also included copies of her marriage certificates and divorce decrees. Also during the course of this appeal, VA sent B.E. copies of VA Form 21 0537, Marital Status Questionnaire, in order to ensure that she had not remarried. B.E. appears to have timely responded to each request to complete the questionnaire, including in December 2012. Further, as discussed above, after receiving VA mail intended for the appellant, B.E. sent the misdirected mail back to VA with her phone number and an offer to speak with the RO at their convenience. The evidence of record reflects that B.E. was a loving wife, trusted by the Veteran, who cared for the Veteran in his final months, and took care of the Veteran’s final expenses after death. During the course of this appeal, B.E. did her best to assist VA, even when it may not have been to her benefit. For these reasons, the Board finds B.E. to be credible. The Board notes in the July 2018 brief the appellant’s representative attacks the credibility of B.E., noting her pecuniary interest and arguing that B.E. should have recognized the appellant’s name as a former spouse of the Veteran. While the Board has considered these arguments, the Board finds that the evidence weighs in favor of a finding that B.E. is credible as it concerns the issues surrounding instant matter. Appellant’s Credibility Having reviewed all the evidence of record, the Board finds the appellant to not be credible. Evidence weighing against the appellant’s credibility, as discussed below, includes her assertions that she had professional divorce papers drafted to teach the Veteran a lesson and that she induced a barred attorney to commit malpractice and/or a legal ethics violation, her inconsistent testimony about the state of the Veteran’s health at the end of his life, missing the Veteran’s funeral despite supposedly living as husband and wife, inconsistencies concerning living arrangements, and providing inconsistent testimony about tax filings and the filing of the Veteran’s January 1988 VA benefits claim. Again, in a July 2018 brief, the appellant and representative attempt to dispute the Board’s credibility findings, which were originally included in the Board’s May 2017 decision. As above, while the Board has specifically considered the representative’s arguments and all of the new lay statements, the Board does not find such arguments and lay statements to be sufficient to outweigh the Board’s credibility findings. Initially, the Board will address the May 1987 Complaint for divorce. As discussed above, in May 1987, the appellant signed a Complaint for Absolute Divorce to be filed at the Superior Court of the District of Columbia. Per the Complaint, the appellant was residing in Washington, DC, and the Veteran was living in Bladensburg, Maryland. According to paragraph seven, the two resided together as husband and wife until October 1, 1984, when they separated and ceased cohabitating, without interruption, since that time. In other words, the appellant advanced in a public record representing true facts to the Court that the two had been living separately for approximately two and a half years. The Complaint was signed (subscribed and sworn) before a notary public. The Veteran signed a copy of the Certificate of Service, which indicates that the Complaint was served upon the Veteran. The Complaint was also professionally drafted by an attorney. Such indicia recognize the seriousness of the intent to divorce and to represent as true these facts to the Court by filing this public document. In June 1987, the Veteran signed an Answer admitting to everything alleged by the appellant in the May 1987 Complaint, which included that the Veteran and appellant lived at different addresses, that they stopped living together as husband in wife in October 1984, that the separation had continued uninterrupted without cohabitation, and that there was no hope of reconciliation. Further, the Veteran asked the Court that the appellant be granted the requested absolute divorce. The answer was also signed (subscribed and sworn) before a different notary public. At the June 2009 Central Office hearing, the appellant recalled signing the Complaint on or about 1987; however, she testified that the Veteran never actually moved out of the house. Rather, the appellant filled out the papers in order to “teach [the Veteran] a lesson.” Further, the appellant testified that the drafting attorney knew that the Veteran and the appellant were still living under the same roof. Additionally, the appellant testified to having been a paralegal, and that she could have filed the documents if she really wanted to divorce. The mere act of paying an attorney to draft divorce papers and signing them under oath before a notary simply to teach her husband a lesson would reflect badly on the appellant’s credibility in and of itself; however, the appellant went far beyond that. Specifically, the appellant testified to the Board Veterans Law Judge that she knowingly induced a barred attorney to commit malpractice and/or a legal ethics violation by having the attorney draft a Complaint based upon a year or more of separation when the attorney supposedly knew that the two were still living together. Such an admission (assuming, arguendo, she is telling the truth on this matter) would cast an extremely negative light on the appellant’s character for truth telling and credibility. In other words, at the June 2009 Central Office hearing, either the appellant admitted to effectuating a legal and/or ethical violation OR she gave untrue testimony under oath to the Board. Neither option reflects well on the appellant’s truthfulness or credibility. The Board finds that the weight of the evidence shows the appellant was not present during the Veteran’s final months. At the June 2009 Central Office hearing, when asked where she was at the time of the Veteran’s death, the appellant testified to being told that the Veteran was in a drug free treatment program in Kissimmee, Florida. Further, she testified that the Veteran told her to remain in St. Petersburg during the treatment and that he would return upon its completion. She also testified that she was prevented from obtaining any information about the Veteran’s stay at the drug treatment center without a court order. As discussed above, per a letter from a private physician in October 1996, the Veteran was bedridden for at least the last month of his life, which entails deterioration of health for months prior to the state of being bedridden. The Board does not find it credible that the appellant could have looked at the Veteran during the last months of his life and thought to herself that the only thing wrong with the Veteran was drug abuse and/or withdrawal, especially in the context of this case where the evidence shows that the appellant knew little of the Veteran’s whereabouts, health status, or healthcare prior to his death. The Board finds the fact that the appellant missed the Veteran’s funeral to weigh heavily against her credibility. The Board notes that the appellant has never asserted that she attended the Veteran’s funeral. At the June 2009 Central Office hearing, when asked how she found out that the Veteran and B.E. were married, the appellant testified it was after being locked out of obtaining the Veteran’s personal records because B.E. was listed as the Veteran’s wife at the time of death. Such evidence indicates that the appellant did not learn that the Veteran was married to B.E. until approximately a month or more after the Veteran’s death. Missing the Veteran’s funeral supports the Board’s finding that that appellant was not with the Veteran during the last few months of his life or at his death – further evidence of marital separation that was not just for convenience. The evidence reflects that B.E. arranged the Veteran’s funeral as the Veteran’s spouse. As such, had the appellant attended the Veteran’s funeral, she would have seen B.E. being listed as the Veteran’s wife in the funerary materials. As the appellant did not learn that the Veteran was married to B.E. until after the funeral, the appellant must not have been in attendance. The Board does not find it credible that B.E. would have missed the Veteran’s funeral if the two of them were truly living as husband and wife. The Board notes that in a recent July 2018 statement, subsequent to the May 2017 Board decision in which the above analysis first appeared, the appellant advanced not attending the funeral because she was hurt and depressed about the situation at that time; however, the Board does not find this self serving statement made many years into appellate process to be credible when considered with all the other evidence of record. At the June 2009 Central Office hearing, the appellant also testified to filing taxes jointly with the Veteran, and that in 1994 she was hit with a $26,000 tax bill because the Internal Revenue Service (IRS) was unable to locate the Veteran. The Board finds this testimony to be contradictory. If the Veteran and appellant were living together as husband and wife and filing their taxes jointly, then the appellant would not have been hit with a separate $26,000 tax bill due to the IRS’s inability to locate the Veteran. Rather, their joint tax return would have shared the same address, and it would have been readily apparent that they owed money to the IRS once their taxes had been completed. This inconsistent testimony weighs against the appellant’s credibility. Finally, at the June 2009 Central Office hearing, the appellant testified to being the one that filed the Veteran’s request for service connection due to Agent Orange exposure. Further, the appellant advanced using the Washington, DC, address when filing the claim. The evidence of record reflects that this testimony is simply not true. As discussed above, the home address listed by the Veteran in the January 1988 service connection claim was in Bladensburg, Maryland, which is the same address noted in the May 1987 Complaint for divorce. The Veteran’s contemporaneous listing of his home address as Bladensburg, Maryland, in the context of other evidence showing this was his address, is much more probative than the appellant’s statement made over 20 years later to VA for pecuniary gain. Throughout the course of this appeal the appellant has been contradictory and untruthful in presentations to VA pursuant to obtaining compensation, and the appellant’s assertions are outweighed by the other evidence of record. For the above discussed reasons, the Board finds the appellant not to be credible regarding her claimed continuous cohabitation with the Veteran, her reasons for having the May 1987 Complaint for divorce drafted and subsequently signed and notarized, her presence during the last few months of the Veteran’s life and her knowledge of the Veteran’s health, her association with B.E., her lack of knowledge that the Veteran was remarried, various tax issues, and the filing of the Veteran’s January 1988 service connection claim. Lack of Misconduct by Veteran After reviewing all the relevant evidence of record, the Board finds that the weight of the evidence demonstrates that there was no misconduct on the part of the Veteran that would exempt the appellant from the continuous cohabitation requirement under 38 C.F.R. § 3.53(b) for the purpose of establishing recognition as the surviving spouse for death benefits. As discussed above, the appellant has advanced that during her marriage the Veteran was living a double life. Specifically, the appellant conveyed that the Veteran had a second wife, B.E., whom he claimed to be his sister. Importantly, the appellant has advanced that B.E. was complicit in the Veteran’s deception. Per the appellant, upon meeting B.E. sometime between 1990 and 1992, B.E. actively pretended to be the Veteran’s sister and even spent the day with the appellant introducing her around Richmond, Virginia. B.E., on the other hand, has explicitly denied knowing the appellant at all. These are inconsistent statements that must be weighed. Having reviewed all the relevant evidence of record, for the reasons discussed above, the Board finds B.E. to be credible, and finds the appellant not to be credible in her truthfulness, particularly in regards to her relationship with the Veteran in the final months of his life and her knowledge and association with B.E., the Veteran’s spouse at the time of the Veteran’s death. For these reasons, the Board finds that the appellant never met B.E. and was never introduced to B.E. as the Veteran’s sister. Considering that the appellant was untruthful about meeting B.E. and numerous other statements that are inconsistent with and outweighed by other evidence of record, the Board also finds all other statements made by the appellant regarding the Veteran living a “double life” to be untruthful. As this “double life” argument was the basis for the appellant’s misconduct claim against the Veteran, the Board finds the misconduct argument to be a speculative allegation that has no support in the record. Continuous Cohabitation As discussed above, in addition to misconduct, the appellant has also advanced that any temporary separations were by mutual consent and that the parties lived apart for purposes of convenience, health, and/or business. Essentially, the appellant advanced that the two had a marriage where it was agreed that they could come and go as they pleased, for reasons ranging from the desire to travel, the Veteran’s work, and the Veteran’s healthcare. After reviewing all the relevant evidence, the Board finds the weight of the evidence to show that the May 1987 Complaint for divorce was a communication by the appellant of a definite intent to end the marriage by the surviving spouse, which, coupled with the other credible facts found in this case, broke the continuity of cohabitation, so precludes the appellant from surviving spouse recognition. See Alpough at 1357. Initially, the Board notes that in October 2010 VA sent the appellant a letter asking for any of the following to support the argument that she continuously cohabitated with the Veteran from 1993 until his death in October 1996: tax returns; deeds; correspondence to the appellant and veteran; leases; joint bank account statements; utility bills; car titles. To date, none of these documents has been provided to VA. In fact, in multiple filings since the letter was sent, the Veteran’s representative reported that no such evidence would be forthcoming. In a September 2009 statement (and various subsequent statements), the appellant’s representative informed VA that no IRS tax records were available to show that the appellant and the Veteran filed joint tax returns in the 1990s. The representative advanced that the IRS had destroyed the records after 10 years and that, while the appellant previously had the records in her possession, she destroyed the documents five years after filing; however, no explanation was provided as to why any of the other requested evidence was unavailable. VA received an IRS memorandum dated April 1987 noting that the appellant’s federal and state tax ductions were based upon married status, filing jointly. The Board notes that this letter would only refer to tax filings through 1986, which is prior to the appellant’s filing of the Complaint for divorce in May 1987, so has no tendency to show any relationship with the Veteran subsequent to the May 1987 Complaint for divorce. A second IRS tax letter was also associated with the record. The letter is hard to read as the handwriting is either faint and/or sloppy. Per the appellant’s representative, the letter is dated April 1989 (the Board cannot say for sure that this is the date) and addressed to the Veteran at the Washington, DC, address formerly shared by the Veteran and appellant. While the document is difficult to read, it appears that the IRS letter refers to a filing for the period ending in December 1982, and which was filed in November 1984. It is not surprising that information regarding this filing would have been sent to the Washington, DC address, as the Veteran and appellant were still married in November 1984. Such evidence has no tendency to show any relationship or cohabitation beyond November 1984, including following the May 1987 Complaint for divorce. In an October 2008 statement, the appellant advanced that she and the Veteran lived together in Georgia, Washington, DC, Virginia, Maryland, and Florida. The appellant also conveyed that the two were always together, except for when the Veteran was traveling or hospitalized, from marriage until death. This statement is facially untrue, as the evidence reflects that the appellant was not with the Veteran for at least the last month of his life when he was bedridden at home in Kissimmee, Florida. The appellant testified at a June 2009 Central Office hearing. Per the appellant’s testimony, after getting married, she and the Veteran first resided in Atlanta, Georgia, from 1982 to 1984. The appellant then testified to living in Washington, DC, in 1984; however, the appellant also testified to living at another address because she traveled. She then testified to living with the Veteran in Maryland and Virginia. Finally, she testified that she and the Veteran lived in St. Petersburg, Florida, from 1993 until 1996, at which point she moved out of the Florida home after the Veteran’s death. Further, the appellant testified that she and the Veteran never separated except for traveling, which was often, as the Veteran was always coming up with excuses to be out of the home. On one occasion, the Veteran told the appellant that he was working on a cruise ship; however, the appellant testified that the Veteran would eventually return home. As discussed above, the Board does not find the appellant to be credible, and, as such, does not find the testimony concerning her and the Veteran’s living history to be credible. In a February 2012 statement, the appellant advanced that she and the Veteran lived together in St. Petersburg, Florida, when the Veteran was not in the hospital or traveling. It was agreed that they would travel and come and go as they pleased. During this time they also rented a home in Kissimmee, Florida, where most of the family vacationed, and they also traveled to the Washington, DC, metro area for business and health reasons. The appellant advanced that their marriage “was not the conventional type,” but that it was the marriage they agreed to, without abandonment by either party. They were married and cohabitated as a married couple when together. Again, for all the reasons discussed above, the Board does not find the February 2012 statement to be credible, particularly the part about renting a home in Kissimmee, Florida. Presumably, the pair would have rented the Kissimmee home to allow the Veteran to be near his second wife, B.E., while continuing to refer to B.E. as his sister to appellant; however, in the instant decision the Board has found that B.E. never met the appellant. As such the appellant’s statement that they rented a home in Kissimmee, Florida, to be closer to “family” is not credible. As discussed above, 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 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). Here, the appellant has advanced that any separations were due to health, business, and travel; however, for all the reasons discussed above, the Board does not find the appellant credible. Rather, the evidence reflects that for the last few years of the Veteran’s life he lived with B.E., to whom he appears to have believed he was legally married, as man and wife. The credible evidence shows that, during the last few months of his life, when he was bedridden and unable to take care of himself, the Veteran stayed at home and was taken care of by B.E., who had quit her job to care for him. If the appellant had truly been introduced to B.E. as the Veteran’s sister, then perhaps this could have fallen under the separation due to health exception; however, in the instant decision, the Board finds that the appellant was not introduced to B.E. as the Veteran’s sister. Were the appellant and Veteran truly living together as man and wife during this period, either the appellant should have been taking care of the Veteran during his final days, or the Veteran should have been in a hospice or similar facility. As the appellant does not appear to have been a part of the Veteran’s life in his final days, the Board finds that there is sufficient contradictory information to find that the Veteran and appellant’s separation was not for convenience, health, business, or any other reason which did not show intent on the part of the surviving spouse to desert the veteran. Id. Finally, as discussed above, under Alpough, a separation by mutual consent would constitute desertion if there was communication of a definite intent to end the marriage by the surviving spouse, which breaks the continuity of cohabitation and precluding surviving spouse recognition in such instance. Alpough at 1357. Here, the Board finds that the May 1987 Complaint for divorce was a communication by the appellant of intent to end the marriage. Per a brief filed by the appellant’s representative in November 2008, while living in Georgia, the appellant and Veteran began having marital problems. This led the couple to subsequently move to Washington, DC. In a November 2008 statement, the appellant advanced that, while living in Washington, DC, she had to pay an attorney to get the Veteran out of trouble on at least one occasion. Maryland court records reflect that the Veteran was arrested for driving while under the influence in December 1985 and that the Veteran subsequently pled guilty and was given probation. The Veteran violated that probation and an arrest warrant was issued in April 1987. It does not appear the warrant was countermanded until April 1994. The Board finds it unlikely that the Veteran would have spent much, if any, time in the Washington, DC, metro area knowing that a warrant was out for his arrest. In a November 2010 argument, the appellant’s representative pointed out that the Circuit Court of Maryland print out listed a Washington, DC, address for the Veteran; however, the Board notes that at the time of arrest, which was during the separation of the Veteran and appellant, the Veteran might simply have failed to update his address to Bladensburg, Maryland. At the June 2009 Central Office hearing, the appellant testified to being fed up with the number of tickets the Veteran was accumulating, which were paid for by the appellant, beginning on or about 1985. This testimony is supported by a lay statement submitted by A.S. in November 2008. Per the lay statement, A.S., who resided in Salisbury, Maryland, allowed both the appellant and the Veteran to use her car for a period of about two years. During that time the car accumulated a number of tickets and A.S. had to take the car back. At the June 2009 Central Office hearing, the appellant testified that she was fed up with the Veteran’s legal troubles. She hired an attorney to draft the Complaint for divorce, which she subsequently signed before a notary and served upon the Veteran. The Board finds that the act of serving legally adequate and notarized divorce papers on the Veteran was a communication of intent to end the marriage by the appellant. This finding is supported by the fact the Veteran apparently believed himself to be divorced, as he subsequently moved to Kissimmee, Florida, remarried, and sent said divorce papers to VA in August 1996 as proof that the veteran and Appellant were divorced. In order to explain away the Complaint, the appellant testified that, upset with the Veteran’s legal troubles, she had the Complaint drafted to “teach [the Veteran] a lesson.” As discussed above, the Board does not find the appellant credible, and, in turn, does not find this explanation credible, particularly in light of the other evidence of record. The record reflects that the Veteran and appellant began having marital problems on or about 1984 or 1985. The appellant has attributed these problems, at least in part, to the Veteran’s legal issues, which are documented in the record. The appellant then served legally adequate, signed, and notarized divorce papers on the Veteran. The Veteran signed a legally adequate and notarized Answer, and then appears to have moved on with his own life, resulting in remarriage in 1993. These are the actions of a man who believed the appellant had a definite intent to end the marriage. After reviewing all the relevant evidence of record, for the above stated reasons, the Board finds that any separations between the Veteran and appellant were not by mutual consent and were 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. Rather, the Board finds that the appellant served the May 1987 Complaint for divorce on the Veteran with the intent to end the marriage, and that the Veteran and appellant proceeded to go their separate ways. As such, the Board finds that the continuity of cohabitation was broken and the appellant is precluded from recognition as a surviving spouse. See Alpough at 1357. Evidence that Appellant and Veteran were Together after Separating The Board notes that VA has received multiple lay statements from individuals claiming to have seen the Veteran and appellant together after their separation in 1987; however, the Board does not find that these lay statements contradict the Board’s finding that there was not continuous cohabitation between the Veteran and appellant from the date of marriage to the date of the Veteran’s death. As first discussed in the May 2017 Board decision, in June 2009, VA received a lay statement from a D.C. advancing that he rented a home in St. Petersburg, Florida, to both the appellant and the Veteran from November 1993 to November 1996 for $475 per month in rent. VA has not received any evidence supporting this assertion, such as a signed lease or canceled checks. Further, the Board takes judicial notice that there is no home in St. Petersburg, Florida, with an address of “[redacted].” VA recently received a new statement from D.C. dated March 2018. This statement included a corrected address and internet print out of the home that had been purportedly rented out. While the Board appreciates the address clarification, it again notes that no evidence supporting the assertion of tenancy of the appellant and Veteran, such as a signed lease or canceled checks, has been provided by D.C. or the appellant. VA received a lay statement from an A.S. in November 2008. Per the lay statement, A.S. allowed both the appellant and the Veteran to use her car for a period of about two years. During that time the car accumulated a number of tickets and A.S. had to take the car back. The Board notes that no dates were provided as to when the two were using the car. A.S. advanced that she was living in Salisbury, Maryland, at the time. In a subsequently received June 2018 lay statement, A.S. stated that the car was used from 1984 to around 1986, which was when the Veteran and appellant were still together. VA received a November 2008 lay statement from another individual by the initials of A.S. Per the statement, A.S. knew the appellant and the Veteran when they lived in Washington, DC; however, as no dates were provided, and the statement does not assert that A.S. saw the two together after their separation. This statement is of no probative value to show the Veteran and appellant were together after the 1987 separation. A July 2009 lay statement from an E.R. was received by VA. Per the Statement, E.R. advanced that the Veteran and the appellant lived in Florida from 1993 to 1996; however, E.R. never stated that they lived together as man and wife, or even that they lived together at all. The evidence of record supports E.R.’s assertion that the two resided in Florida during that time period; however, the evidence indicates that during that time the appellant lived in St. Petersburg, Florida, while the Veteran lived separately with his new wife in Kissimmee, Florida. In June 2011, VA received a lay statement from R.B., which stated that the appellant lived in St. Petersburg, Florida, until 1993. The statement reports that, after returning to the Washington, DC, metro area, the appellant informed R.B. of the Veteran’s death. A September 2011 lay statement from a C.G. advanced that C.G. visited the home of the Veteran and appellant in Florida during the period of 1992 to 1996. Further, a September 2011 lay statement from C.B. and G.B. conveyed that the Veteran and appellant visited them in Kissimmee, Florida, on several occasions from 1993 to 1996. VA also received a January 2012 lay statement from a C.L. Per the statement, C.L. knew that the appellant and Veteran lived in Georgia, Washington, DC, and then Florida until the Veteran’s death. In a November 2014 lay statement, the appellant’s son advanced living with the Veteran and appellant in the Washington, DC, home. The Veteran would come and go, but the appellant and the Veteran were together until the Veteran’s death in 1996. Additionally, in 1991 when another of the appellant’s sons was injured in a motorcycle accident, both the appellant and the Veteran came up from Florida to see them. The Board notes that 1) this was prior to the Veteran’s marriage to B.E.; and 2) as the Veteran and appellant were married previously, it is not surprising that the Veteran would want to visit his injured stepson. Assuming the aforementioned evidence is credible, and reconnecting the credible evidence into a consistent picture, the Board makes the following inference as to the appellant’s and Veteran’s relationship history. See Bastien v. Shinseki, 599 F.3d 1301, 1306 (Fed. Cir. 2010) (recognizing that the “evaluation and weighing of evidence and the drawing of appropriate inferences from it are factual determinations committed to the discretion of the fact finder”). The Veteran and appellant married in October 1982, and, after some relationship difficulties, lived separate and apart for approximately two and a half years before permanently ending (or at least attempting to permanently end) the marriage in May 1987, with the Veteran thinking that they were divorced. At some point during the years after separating from the marriage, the two came back into contact occasionally and infrequently for any number of reasons, to include the Veteran’s former stepchildren. Subsequently, the Veteran met and fell in love with B.E. and the two were married in February 1993. From 1993 until some point before the Veteran became bedridden, the Veteran and appellant may have continued to have occasional and infrequent contact, for familial or other reasons; however, they were not holding themselves out as husband and wife at this time. After the Veteran’s death, the appellant, facing financial difficulty and knowing that she and the Veteran were not officially divorced, applied for SSA Widow’s Benefits. Then, finding that the benefits were granted, the appellant requested DIC benefits from VA in July 2006, bringing us to the instant decision. Conclusion After a review of all the evidence of record, the Board finds that, regardless of whether the appellant was the legal spouse of the Veteran at the time of the Veteran’s death, the appellant had not lived with the Veteran continuously from the date of marriage to the date of the Veteran’s death. There was no misconduct on the part of the Veteran, as the Board finds that the Veteran was not living a “double life” with two wives. Further, the Board finds that the filing of the May 1987 Complaint for divorce by the appellant on the Veteran communicated to the Veteran that the appellant wished for the marriage to end. Accordingly, the appellant does not qualify as a surviving spouse for purposes of VA DIC benefits. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Blowers, Counsel