Citation Nr: 19151237 Decision Date: 07/02/19 Archive Date: 07/01/19 DOCKET NO. 18-39 010 DATE: July 2, 2019 ORDER Entitlement to recognition of the appellant as the deceased Veteran’s surviving spouse for the purpose of establishing eligibility for VA death benefits is denied. FINDINGS OF FACT 1. The appellant and the Veteran were married on April [Redacted], 2000 and divorced in December 2003. 2. The appellant and Veteran remarried through a common law marriage from December [Redacted], 2007 and were still married at the date of the Veteran’s death. 3. The appellant and the Veteran separated in 2013 due to “irreconcilable differences” and she did not live continuously with the Veteran until his death. CONCLUSION OF LAW The criteria for recognition of the appellant as the deceased Veteran’s surviving spouse for the purpose of establishing eligibility for VA death benefits have not been met. 38 U.S.C. §§ 101 (3); 38 C.F.R. §§ 3.1 (j), 3.50, 3.53. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1974 to February 1977. He died in May 2015. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2014 decision of the Department of Veterans Affairs (VA) Regional Office (RO) Pension Maintenance Center. In that decision, the RO found that the appellant was not eligible for VA death benefits because she had not been established as the surviving spouse of the Veteran. In October 2018, the appellant elected the Rapid Appeals Modernization Program (RAMP). 84 Fed. Reg. 138, 177 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 19.2(d)). However, the parameters of the program established by the Veterans Benefits Administration allow only veterans with pending benefits claims to participate in RAMP. Therefore, the appellant’s election form requesting Supplemental Claim Review is moot. 1. Entitlement to recognition of the appellant as the deceased Veteran’s surviving spouse for the purpose of establishing eligibility for VA death benefits In order to be recognized as a veteran’s surviving spouse for the purpose of establishing eligibility to VA death benefits, the appellant must be 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 and: (1) 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 (2) except as provided in 38 C.F.R. § 3.55, 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 (3); 38 C.F.R. § 3.50. “Marriage” means a marriage valid under the law of the place where the parties resided at the time of the marriage, or the law of the place where the parties resided when the right to benefits accrued. 38 C.F.R. § 3.1 (j). If the couple did not continuously cohabitate or was estranged or separated at death, VA must determine whether the separation was due to the misconduct of, or procured by the veteran without the fault of the spouse. See 38 U.S.C.A. § 101 (3); 38 C.F.R. § 3.53. If the evidence establishes that the separation was by mutual consent and that the parties lived apart for purposes of convenience, health, business, or any other reason which did not show an intent on the part of the surviving spouse to desert the veteran, the continuity of the cohabitation will not be considered as having been broken. 38 C.F.R. § 3.53 (b). In determining whether there was continuous cohabitation, the statements of the surviving spouse as to the reason for the separation will be accepted in the absence of contradictory information. Id. In this case, the appellant contends that she is the surviving spouse of the Veteran. In particular, she claimed that although they separated in 2013, it was for purposes of convenience because the Veteran was looking for work, and that she was without fault. The appellant submitted the Veteran’s death certificate in October 2016. At the time of his death in May 2015, the Veteran’s daughter reported that the Veteran was divorced, and the original death certificate reflects this status. However, in an April 2016 affidavit, the same daughter reported that he was married to the appellant and the death certificate was amended in May 2016. The evidence reflects that the Veteran and the appellant married in April 2000 and divorced in December 2003, and that they remarried in December 2007. There is no evidence that the Veteran and the appellant divorced prior to his death. In her April 2017 statement of marital relationship, the appellant reported that she and the Veteran did not live together continuously from the time of their marriage until his death beginning in 2013 and ending in 2015 for reasons of “work-death.” A supporting statement from C.W. who had known the Veteran and the appellant for 18 years corroborated that they had not lived together continuously but she did not elaborate. However, a supporting statement from the appellant’s sister reflects that the Veteran and the appellant lived together continuously and that she visited their home. In a May 2017 statement, the appellant explained that she and the Veteran separated from 2013 to 2015 due to irreconcilable differences. In a May 2017 declaration of status of dependent, the appellant stated that the Veteran contributed to all her financial needs. VA treatment records in January 2013 indicate that the Veteran was separated for three years. Records in April 2015 concerning hospice/palliative care reflects that the Veteran was moved to his sister’s home. In a January 2017 statement, the appellant reported that she and the Veteran were trying to reconcile in January 2015, and that the Veteran had been supporting her while they were separated. In her May 2018 notice of disagreement (NOD), the appellant alleged that the continuity of cohabitation was not broken because the separation between the appellant and the Veteran was procured by the Veteran, the appellant did not show an intent to desert the Veteran, and there was no evidence that the appellant intended to “definitely end of the marriage.” In her July 2018 substantive appeal (VA Form 9), the appellant again contended that the continuity of cohabitation was not broken because the separation between the appellant and the Veteran was procured by the Veteran, the appellant did not show an intent to desert the Veteran, and there was no evidence that the appellant intended to “definitely end of the marriage.” Further, she stated that she and the Veteran had reconciled before his death and intimated to family members their desire to remain married. In addition, she stated that the Veteran moved away to pursue a job opportunity, and that they remained married until his death and they continued mutual financial support of each other. Based on the evidence of record, the Board finds that the Veteran does not meet the requirements for continuous cohabitation. At the outset, the Board finds that the appellant’s statements are contradictory. While the appellant reported that she and the Veteran separated beginning in 2013 until the Veteran’s death in 2015 due to “work-death,” in her May 2017 statement she explained that they separated due to “irreconcilable differences.” It was not until after the October 2017 denial of her claim that she contended in her May 2018 NOD that the separation was procured by the Veteran, and not until her July 2018 VA Form 9 that she stated that the Veteran left to pursue a job opportunity. In addition, in January 2017, she stated that she and the Veteran were trying to reconcile in January 2015, but in her July 2018 VA Form 9 she reported that they had reconciled prior to his death and intimated to family members their desire to remain married. However, there is no evidence that the Veteran and the appellant cohabited after this alleged reconciliation. To the contrary, VA treatment records in April 2015 concerning hospice/palliative care reflects that the Veteran was moved into his sister’s home. Further, there is contradictory evidence as to when the Veteran and the appellant separated. The appellant reported that she and the Veteran separated in 2013. However, VA treatment records on January 24, 2013, reflect that the Veteran had been separated for 3 years, or in approximately 2010. Finally, in her May 2017 declaration of dependents and in her January 2017 statement, the appellant contended that the Veteran supported her in all her financial needs, but in her July 2018 VA Form 9 she stated that she and the Veteran mutually supported each other financially. However, there is no evidence that the Veteran supported her between 2013 and his death while they were separated. In May 2017, the RO requested that the appellant provide information as to the amounts and dates of the Veteran’s contributions to support her during their separation, statements concerning the attempts they had made to reconcile and whether they intended to live together again, and all dates and places she and the Veteran lived during the period of separation. The appellant did not provide the information. In light of the evidence of record, the Board finds that the separation was by mutual consent due to irreconcilable differences, and that the parties did not live 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. Further, there is no evidence in the record that the Veteran and the appellant lived together at any point after their separation. While the Board is cognizant of the appellant’s contentions, it is bound by applicable laws and regulations. 38 U.S.C. § 7104 (c); 38 C.F.R. §§ 19.5, 20.101(a). The law is clear that in order to establish entitlement to VA death benefits, the appellant must be recognized as the Veteran’s legal spouse at the time of his death. 38 C.F.R. §§ 3.1 (j), 3.50. The fact that the appellant was separated from the Veteran and did not continuously cohabit with him at the time of his death forecloses eligibility for VA death benefits. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. Accordingly, entitlement to recognition of the appellant as the deceased Veteran’s surviving spouse for the purpose of establishing eligibility for VA death benefits must be denied. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Leifert, 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.