Citation Nr: 19145166 Decision Date: 06/11/19 Archive Date: 06/11/19 DOCKET NO. 14-19 763A DATE: June 11, 2019 ORDER Recognition as a surviving spouse for basic eligibility for VA dependency and indemnity compensation (DIC) benefits is denied. FINDING OF FACT The Veteran and the appellant, who were married in July 1970 and separated in the late 1970s, continuously lived apart, whereas the Veteran lived with his mother until the time of his death; and there is no probative evidence to show that the separation was the result of the Veteran, without fault by the surviving spouse. CONCLUSION OF LAW The criteria for recognition of the appellant as the surviving spouse for purposes of eligibility for DIC benefits have not been met. 38 U.S.C. §§ 101 (3), 103, 1102, 1304, 1310, 1541, 5107(b) (2012); 38 C.F.R. §§ 3.1 (j), 3.50, 3.52, 3.53, 3.54, 3.102, 3.205 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1970 to October 1972. He died in December 1998, and the appellant contends that she is the surviving spouse. This appeal comes before the Board of Veterans’ Appeals (Board) from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In March 2015, the appellant and her son, S.W., testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. In January 2016 and February 2018, the Board remanded the case to the RO for further evidentiary development. The Board particularly notes that in the May 2013 rating decision, the RO initially denied the claim to reopen service connection for the cause of the Veteran’s death. However, in January 2016, the Board reopened the claim and remanded the claim for the RO to determine whether the appellant is considered a “surviving spouse” for VA purposes, among other directives. Recognition as a Surviving Spouse for Basic Eligibility for DIC Benefits The Veteran asserts that she even though she and the Veteran were separated, they remained married until his death; and that should be awarded DIC benefits and recognized as the Veteran’s surviving spouse. See e.g. August 2017 Correspondence; see also May 2018 Correspondence. A surviving spouse may qualify for DIC benefits 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 (2018). The term “surviving spouse”, except as provided in 38 C.F.R. § 3.52 (2018), means a person whose marriage to the veteran meets the requirements of 38 C.F.R. § 3.1(j) (2018) 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) (2018). 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 Board finds that the appellant has not met the criteria for “surviving spouse”, for purposes of VA compensation because the “continuous cohabitation” requirement has not been shown, and there is no probative evidence to show that the Veteran and the appellant’s separation was due to the misconduct of, or procured by the Veteran, without the fault of the appellant. Specific reasons follow. The Veteran and the appellant married in July 1970. See Marriage Certificate. Despite conflicting information, the evidence also suggests that they separated from marriage in the late 1970s. See December 1987 Request for Physical Examination form (noting that the Veteran married when he was 19 years old, the appellant was 18 years old, and that they remained married for six years); see also May 2018 Correspondence from the Appellant (stating that she and the Veteran separated in 1978); see, too March 2015 Videoconference Hearing Transcript (reflecting that the appellant indicated that she and the Veteran separated in the late 1970s). Although the appellant provided conflicting information, indicating that she separated from the Veteran in 1973, see April 1999 Application for DIC Benefits, and subsequently, indicated that they separated in 1981, see December 2011 Statement in Support of Claim, the Board finds that the appellant separated from the Veteran in the late 1970s because this date is more credible and consistent, as the Veteran and the appellant corroborate each other’s disclosure about the date of separation. In conjunction with these facts, the evidence suggests that the Veteran and the appellant likely separated in or around March 1976. Specifically, a January 1976 Application for Program or Education Training form (education application) expressly indicated that the Veteran and the spouse had the same mailing address in Ringgold, Virginia. However, nearly two months later, in a March 1976 Request for Change of Address form, the Veteran changed his address from the same address that was listed in the January 1976 education application, to a new address, also in Ringgold Virginia. Additionally, the evidence reflects that after their separation, the Veteran lived with his mother, from at least June 1981, up until the time of his death in December 1998. See June 1981 Veteran’s Application for Compensation or Pension form (application for compensation); see also December 1987 Request for Physical Examination; see, too Report of General Information (documenting a telephone call between VA and the appellant, in which she indicated that she was separated from the Veteran, and that he was living with his mom at the time of his death). As a matter of fact, the appellant has not asserted that they were in “continuous cohabitation.” See July 2018 Board Appeal. Rather, she provided a list of addresses where she lived, as well as one address where the Veteran lived, which was distinct from her own address history. In particular, the appellant’s addresses were all located in Danville, Virginia, whereas the Veteran’s address was located in Ringgold, Virginia. Therefore, “consistent cohabitation” has not been established since their marriage in July 1970. Notwithstanding, in Alpough v. Nicholson, 490 F.3d 1352 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit held that under 38 C.F.R. § 3.53(b), the “continuous cohabitation” requirement is met if separation was procured by the Veteran without fault of the surviving spouse, and that a separation by mutual agreement, without an intent to desert, does not break the continuity of cohabitation. However, this criteria, based on Alpough, has not been established. For purposes of assisting the appellant with establishing this criterion, the RO provided the appellant with an opportunity to submit details about the nature and circumstances of her separation on two occasions. See November 2011 VCAA/DTA Letter; see also February 2016 Notification Letter. However, she provided contradicting statements, and/or insufficient details and/or evidence to support to her contentions. Specifically, in a February 2016 notification letter, the RO requested for additional information and expressly instructed the appellant to provide details and evidence including, her own statements, with statements from two additional individuals; dates and places where she and the Veteran lived during any period of separation, prior to the Veteran’s death; a statement explaining why each separation occurred, and whether there was a written agreement or court order of separation; a statement as to whether she and the Veteran intended to live together again; a statement as to whether there were any attempts by herself or the Veteran to resolve or settle their problems; a statement about the amount and dates of the Veteran’s contribution to her support during each separation; and a statement as to whether she or the Veteran ever applied for divorce or annulment. In her response to this February 2016 request, the appellant provided limited information. Specifically, she provided a list of addresses where she lived, which was distinct from the address she also provided for the Veteran; and additionally, a “statement of separation” that she described as “drinking and abusive conduct.” See March 2016 Statement in Support of Claim. She also provided a statement, indicating that there was no written agreement for their separation; they tried, but they were unable to make things work, in terms of getting back together; the Veteran made no contributions for support during their separation; and that neither she or the Veteran ever filed for a divorce or annulment. See March 2016 Correspondence. In a third, accompanying document, there were two signatures from “E.M.F.” and “A.O.C.”, which were accompanied by a brief statement for each signature, that stated, “agree to the facts stated below.” See March 2016 Third Party Correspondence. Neither of the witnesses provided any actual statements, as written in their own words and based on their own perception, about the circumstances of the appellant’s separation. Rather, they effectively adopted the statements of the appellant. Crucially, neither of the purported witnesses identified and/or described their relationship to the appellant and/or Veteran, and summarily, they inadequately and insufficiently corroborated the statements of the Veteran, without providing any indication as to whether they personally witnessed any of the problems that the appellant asserted. Thus, the Board finds that this piece of evidence, which is purported to be buddy statements and/or statements from two witnesses, has no probative value. Additionally, there is conflicting evidence on the reasons cited for the cause of the separation between the Veteran and the appellant. In his June 1981 compensation application, the Veteran explained that the cause of his separation from the appellant was because they could not get along. However, the appellant cited varying, inconsistent statements to explain the cause of their separation. Initially, the appellant stated that the cause of her separation from the Veteran was due to “his lack of taking care of [her and their children]” and that they separated in 1973. See April 1999 Application for DIC Benefits. Then, she stated that she and the Veteran separated in 1981 because he was having affairs with other women, she caught him, and she left him. See December 2011 Statement in Support of Claim. Subsequently, the appellant stated that their separation was due to drinking and abusive conduct. See March 2016 Statement in Support of Claim. Finally, in a May 2018 correspondence, the appellant provided another statement, indicating that she and the Veteran separated in 1978, and that their marriage ended due to his infidelity, as well his alcoholism, which was most likely caused by his post-traumatic stress disorder. Nonetheless, given the appellant’s varying, inconsistent statements about the reason for her separation from the Veteran, which were distinct from the reasons the Veteran provided in 1981, and with no corroborating and/or supporting statements from any other witnesses, or other evidence, such as, for example, court documents, separation agreement, or other documentation, the Board finds that there is no competent, credible evidence to show that the cause of the separation from the Veteran was a result of the Veteran’s misconduct, without the fault of the appellant. Thus, summarily, the preponderance of the evidence is against this claim, and specifically, the criteria for eligibility for DIC benefits as surviving spouse are not met. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 U.S.C. § 5107 (West 2012); 38 C.F.R. § 3.102 (2018). Therefore, entitlement to recognition as a surviving spouse for eligibility for DIC benefits must be denied. M. Tenner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Vanessa-Nola Pratt, 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.