Citation Nr: 20006587 Decision Date: 01/27/20 Archive Date: 01/27/20 DOCKET NO. 19-08 851A DATE: January 27, 2020 ORDER Entitlement to dependency and indemnity compensation (DIC) is denied. FINDING OF FACT 1. The Appellant and Veteran were not living together at the time of his death. 2. The separation of the Veteran and the Appellant was not due to the misconduct of the Veteran. CONCLUSION OF LAW The criteria to recognize the appellant as the surviving spouse of the Veteran for VA benefits purposes have not been satisfied. 38 U.S.C. §§ 1541, 5107; 38 C.F.R. §§ 3.1, 3.3, 3.5, 3.50, 3.52, 3.53. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1970 to April 1972. He died in December 2017. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to DIC benefits The Appellant has claimed entitlement to VA death benefits. However, before this claim may be addressed on the merits, the Appellant must establish that she is entitled to recognition as the Veteran’s surviving spouse for purposes of eligibility for such benefits. Death pension benefits and DIC benefits are available for surviving spouses in certain circumstances. 38 U.S.C. §§ 1310, 1541(a). The question in this case is if the Appellant qualifies as a surviving spouse for VA purposes. VA’s governing regulations define a surviving spouse and include that the claimant must have been married to the Veteran. See 38 C.F.R. § 3.50(b). Marriage means a marriage valid under the law of the place where the parties resided at the time of marriage, or the law of the place where the parties resided when the rights to benefits accrued. 38 C.F.R. § 3.1(j). A surviving spouse must also 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 which was due to the misconduct of, or procured by, the veteran without fault of the spouse. 38 C.F.R. § 3.50(b)(1). Finally, the person attempting to establish themselves as a surviving spouse have remarried or lived with another person and held herself out openly to the public to be the spouse of such other person since the death of the veteran. 38 C.F.R. § 3.50(b)(2). The Appellant contends that she is the Veteran’s surviving spouse and was married to him at his time of his death in December 2017. The Veteran’s initial death certificate showed that he was divorced at time of death. Subsequently, the Appellant submitted an amended death certificate showing that he was married to her at his time of death. Marriage validity is controlled by state law. In this case, the Board first must consider whether there is a valid marriage between the appellant and the Veteran under Illinois law. The Veteran and the appellant were married in August 1999. The record contains a September 2017 Motion for the Judgement of Dissolution of Marriage (Motion), filed for an uncontested divorce. The Motion is signed by both the Veteran and the appellant. Contained in the Motion are the following declarations: the parties had been separated since May 2004, have lived separate and apart continuously for a period in excess of two years, and irreconcilable differences caused the breakdown of the marriage. A copy of the Cook County Circuit Court’s docket for the divorce proceedings is of record. This evidence indicates that the Veteran passed away five days before his divorce was finalized. Instead, in January 2018, the Motion was dismissed on the grounds that the Veteran was deceased. While the marriage may still be valid under Illinois regulations, the Board must next consider whether the appellant and the Veteran lived 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 fault of the spouse. In support of her claim, the Appellant submitted a statement indicating that she had not lived with the Veteran due to anger-management issues and verbal abuse. She reported that he did not support her during her separation and while an attempt was made to reconcile, she was afraid to live with him. In June 2016, the Appellant’s brother, J.B., submitted a statement which indicated that the parties separated three years after becoming married. He further reported that the Veteran had anger issues which prevented the parties from reconciling their marriage. While J.B. attributed the Veteran’s “anger issues” as a factor preventing reconciliation, the letter does not indicate that the separation was due to the misconduct of the Veteran. The Veteran’s sister, C.L., also submitted a statement regarding the Veteran’s marriage to the Appellant. This statement indicates that problems arose early in the marriage, but the Veteran and the Appellant attempted to make the marriage work. However, in 2004, the Veteran reportedly found “another man’s underwear in the house and [the Appellant] was infected with a venereal disease.” It was noted that the Veteran, the Appellant, and C.L. are all members of the same church and the church leaders recommended that the Veteran undergo laboratory testing to establish that the venereal disease did not come from him. Attached to the statement are the results of blood and urinalysis testing from May 2004. Also of record is a statement from the Veteran to his congregation requesting a “judicial committee to review the circumstances surrounding [him] and [his] wife.” According to C.L., once the laboratory test results came back negative for a sexually transmitted disease, the Veteran sought a divorce from the Appellant, however, she refused to sign the paperwork. It was noted that the Veteran attempted to obtain a divorce at least one additional time before the paperwork was signed in 2017. In this case, it is undisputed that the Veteran and the Appellant were legally married at the time of his death. While divorce proceedings were not yet finalized, the papers clearly indicate that the couple separated in 2004, thirteen years prior to the Veteran’s death. These papers also indicate that the dissolution of the marriage was due to irreconcilable difference. After a copy of the claims file was provided to the Appellant, she alleged that the statements from C.L. were not credible and engaged in ad hominem attacks against C.L. and the Veteran. Additionally, the Appellant asked to see the proof of her infidelity, but did not address the 2004 laboratory test results or the letter from the Veteran to the church leadership that was contained in the claims file. The Appellant also attacked the credibility of her sister-in-law’s statement by contending that the statements were made for financial benefit, however, because C.L. is not seeking DIC benefits, this argument is not persuasive. The Appellant has claimed that the Veteran was emotionally abusive due to his posttraumatic stress disorder (PTSD). While not determinative, the claims file indicates that he never filed a claim for PTSD. The Appellant has also indicated that the Veteran was exposed to tactical herbicides (Agent Orange) based on his participation in the “Vietnam War” however the record indicates that the Veteran served in Germany; his service personnel records clearly indicate that he did not serve in the Republic of Vietnam during the Vietnam era. The appellant’s own statements indicate that she did not live with the Veteran continuously from the date of marriage to the date of the veteran’s death. While the Appellant maintains that their separation was due to the Veteran’s verbal abuse and anger management issues, the record does not contain any support for these statements. In contrast, the statement made by C.L. indicating that the separation was due to the Appellant’s infidelity was supported by a contemporaneous laboratory test result and a letter from the Veteran to his church. Moreover, unlike C.L., the statements made by the Appellant were submitted with the goal of securing monetary benefits. Although the existence of a pecuniary interest does not render the Appellant’s testimony invalid as a matter of course, the Board concludes that it lessens the probative value of statements, especially when presented with the ad hominem attacks on the Veteran and his sister. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (monetary interest may affect the credibility of a claimant's testimony). Accordingly, the Board finds the statements from C.L. to be more probative that the unsupported statements made by the Appellant in connection with her claim for monetary benefits. The Board has also considered the statement made by the Appellant’s brother. However, as discussed above, this statement does not indicate that the separation was due to the misconduct of the Veteran, but that the Veteran’s anger prevented reconciliation. In light of the above, the appellant is not recognized as the Veteran’s surviving spouse for the purposes of establishing eligibility for VA death pension benefits or DIC benefits and the claim is denied. The preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. V. Palatt, 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.