Citation Nr: 19183003 Decision Date: 11/05/19 Archive Date: 11/01/19 DOCKET NO. 18-08 185 DATE: November 5, 2019 ORDER Resolving reasonable doubt in favor of the appellant, the appellant is considered the surviving spouse of the Veteran for VA purposes. FINDINGS OF FACT 1. The appellant and the Veteran were legally married in December 1957. There is no official record of an annulment or divorce decree terminating the marriage by any court issued to the Veteran or the appellant prior to the Veteran’s death. 2. The appellant and the Veteran separated in or around 1976 and did not live together (cohabitate) thereafter. 3. The statement of the appellant as to the reason for the separation will be accepted in the absence of contradictory information that the separation was by mutual consent or that the parties lived apart for purposes of convenience. 4. The evidence does not show a clear intent on the part of the appellant to desert the Veteran. 5. At or near the time of separation, the appellant entered into a relationship with another man, taking his last name. The Board finds this to be holding herself out openly to the public to be the spouse of this other person. 6. The relationship with whom the appellant held herself out to be the spouse by assuming the last name of her partner, but was not her husband, is described as a short-term relationship, and on this basis the Board finds it most likely this relationship was terminated prior to November 1, 1990 and does not bar the furnishing of benefits. CONCLUSION OF LAW The criteria for the appellant to be considered the surviving spouse of the Veteran for VA benefits eligibility purposes have been met. 38 U.S.C. §§ 101, 103 (2012); 38 C.F.R. §§ 3.1(j), 3.50, 3.53, 3.55 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from June 1951 to January 1971, with service in the Republic of Vietnam. He died in June 2016 at the age of 82. The appellant is considered the surviving spouse of the Veteran. For the purposes of VA benefits eligibility, the term “surviving spouse” means a person who (1) was the spouse of the Veteran at the time of the Veteran’s death, (2) 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 (3) except as provide in 38 C.F.R. § 3.55 who has not remarried or 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. § 101(31); 38 C.F.R. § 3.50. The exceptions provided in 38 C.F.R. § 3.55 provide, in relevant part for this case, that where on or after January 1, 1971, the fact that a surviving spouse has lived with another person and has held herself out openly to the public as the spouse of such other person shall not bar the furnishing of benefits to her after she terminates the relationship, if the relationship terminated prior to November 1, 1990. 38 C.F.R. § 3.55(a)(5). Additionally, on or after October 1, 1998, such fact will not bar the furnishing of dependency and indemnity compensation to the surviving spouse if she ceases living with such other person and holding herself out openly to the public as such other person’s spouse. 38 C.F.R. § 3.55(a)(6). Here, the Veteran and the appellant married in December 1957 while the Veteran was serving on active duty. Marriage license, December 1957. The appellant states that she and the Veteran separated in or around 1976 and that the separation occurred because the Veteran traveled for golf tournaments and decided to relocate. See Appeal to Board of Veterans’ Appeals, February 2018 (identifying time of separation as 1976); Application for DIC, Death Pension, and/or Accrued Benefits, July 2016 (identifying reason for separation). The VA claims file includes a change of address submitted by the Veteran in September 1977 indicating a move from Virginia to Connecticut, generally consistent with the history provided by the appellant of the occurrence of marital separation, although a December 1979 letter by the Veteran references continued pressures of maintaining a family. Overall, the claims file contains conflicting evidence regarding the subsequent history of relationships on both the part of the Veteran and the appellant. However, there is no indication that they ever lived together again. For the appellant, the record indicates that she began a relationship with another man, Mr. E, legally taking his last name. See Social Security Administration Inquiry, September 2016 (verifying appellant’s first name, address, date of birth and social security number is associated with last name of Mr. E only, not the Veteran’s last name). On her application for VA benefits, the appellant used a hyphenated last name, R-E, joining the Veteran’s last name with Mr. E’s, but this appears to be for the purposes of VA benefits entitlement only. The listed e-mail address on this application also uses Mr. E’s name only, not the Veteran’s. Application for DIC, Death Pension, and/or Accrued Benefits, July 2016. The appellant argues that she was in a short-term relationship with Mr. E, whom she states she never married and she states she never held herself out to be the spouse of this man. Appeal to Board of Veterans’ Appeals, February 2018. She states that taking his name “was strictly situational and due to the financial hardships caused by the deceased veteran.” Id. However, she has presented no evidence to substantiate any financial hardships or abandonment by the Veteran in 1976. Nor did the appellant explain how assuming another man’s name would ease such financial hardships without holding herself out to be the spouse of Mr. E. The Board finds that the weight of the evidence is that by having an ongoing relationship with Mr. E and legally assuming this man’s name such that it is recognized by the Social Security Administration as an official government entity, equates to holding herself out to be the spouse of Mr. E, at least for the period of time encompassed by that relationship. However, the Board will accept the appellant at her word that this was a short-term relationship with Mr. E beginning in or around the time of separation in the 1970s, and therefore most likely ending prior to November 1, 1990. As such, the fact that she held herself out to be the spouse of Mr. E, while remaining married to the Veteran does not bar the furnishing of benefits since she terminated the relationship with Mr. E prior to November 1990. 38 C.F.R. § 3.55(a)(5). The record is also unclear as to post-separation relationships from the Veteran’s perspective. On an application for VA benefits submitted during his lifetime in April 2011, the Veteran responded incompletely to questions regarding his marital and dependency information. He stated he was married, had been married 3 times, but was currently separated. He stated his current wife had been married twice and presently lived in Naples, Florida. He did not respond to questions regarding his current spouse’s birthdate and listed no current or former spouse’s name other than the appellant. The marriage to the appellant is listed as terminated by “unknown” where listed options included death or divorce. The date of termination of marriage was left blank, but the place of termination was listed as Danbury, Connecticut. Veteran’s Application for Compensation and/or Pension, April 2011. In support of her present claim for benefits, the appellant has submitted a record search memo from the Clerk of Courts for the Judicial District of Danbury, Connecticut identifying no court records for a divorce case with the Veteran and appellant listed as the parties with a search date of approximately 1980. Court memo, December 2017. In light of the foregoing, viewing the evidence of record in its entirety, despite comments made by the Veteran during his lifetime regarding multiple marriages, and identification of the Veteran’s marital status as divorced on the death certificate (as reported by the son of the Veteran and the appellant), the Board finds no credible confirmatory evidence within the claims file that the Veteran and the appellant were legally divorced at the time of his death. Also of note, VA has paid the Veteran’s month of death benefits to the appellant as the surviving spouse, and she has been recognized as such by the Defense Finance and Accounting Service (DFAS) for the purposes of the Veteran’s retired and annuity pay. See DFAS letter, June 2016. In the absence of a legal divorce or annulment, a valid marriage between the Veteran and the appellant existed on the date of death satisfying the first element necessary for recognition as a surviving spouse. Furthermore, although the appellant concedes that continuous cohabitation between she and the Veteran did not occur, the continuity of cohabitation is not considered as having been broken where a separation was by mutual consent and 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. 38 C.F.R. § 3.53(b). The statement of the surviving spouse as to the reason for the separation is to be accepted in the absence of contradictory information. Id. Thus, the second element is also met. Finally, the third element necessary for recognition as a surviving spouse involves not remarrying or holding oneself out to be the spouse of another person, but is governed by certain exceptions contained in 38 C.F.R. § 3.55, and includes as here, where the appellant terminated the relationship with the individual with whom the Board has found she held herself out as a spouse prior to November 1, 1990. Thus, resolving reasonable doubt in favor of the appellant, the third necessary element for recognition as a surviving spouse is also met. In all, after careful consideration of all procurable and assembled data, the reasonable doubt arising regarding the nature of the separation between the appellant and the Veteran and the date of termination of the appellant’s relationship to Mr. E is resolved in favor of the appellant. On this basis, the appellant is recognized as the surviving spouse of the Veteran for the purposes of VA benefits eligibility. 38 C.F.R. §§ 3.1(j), 3.50, 3.53, 3.55, 3.102. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. McDonald, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.