Citation Nr: 20021285 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 18-46 595 DATE: March 25, 2020 ORDER Entitlement to recognition as the Veteran’s surviving spouse for the purpose of establishing entitlement to Department of Veterans Affairs (VA) Dependency and Indemnity Compensation (DIC) benefits is granted. FINDINGS OF FACT 1. The appellant and the Veteran were legally married in July 1983. 2. From 1993 until the Veteran’s death, in June 2007, the Veteran and the appellant lived separately. The pair signed divorce papers in 1999 but they were never filed. 3. The separation between the appellant and the Veteran was not due to an intent on the part of the appellant to desert the Veteran, and was at least partly based on the misconduct of, or procured by, the Veteran without fault of the appellant. CONCLUSION OF LAW The criteria for entitlement to recognition as the Veteran’s surviving spouse for the purpose of receiving VA DIC benefits have been met. 38 U.S.C. §§ 101 (3), 103, 1310, 5301 (2012); 38 C.F.R. §§ 3.1 (j), 3.5, 3.50 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1974 to December 1989. The appellant is the former spouse of the Veteran. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2018 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Philadelphia, PA. In February 2020, the Veteran testified at a central office hearing in Washington, DC before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the electronic claims record. Entitlement to dependency and indemnity compensation (DIC) benefits The appellant asserts she is entitled to DIC benefits because she and the Veteran were never divorced. See February 2020 hearing transcript. The appellant has stated that she and the Veteran separated due to the Veteran’s infidelity and his move to Florida to aid his ailing mother. Id. When a Veteran dies, his or her surviving spouse may be eligible to VA death benefits, to include DIC benefits, death compensation, and death pension. See 38 U.S.C. §§ 1121, 1310, 1541; 38 C.F.R. § 3.50 (a). VA DIC benefits are payable to a surviving spouse who was married to a veteran: (1) within 15 years of the end of the period of service in which the injury or disease causing the veteran’s death was incurred or aggravated; or (2) one 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. § 1304; 38 C.F.R. § 3.54 (c). The term “surviving spouse” means a person of the opposite sex who was the spouse of a Veteran at the time of the Veteran’s death, and 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 who has not remarried or (in cases not involving remarriage) has not since the death of the Veteran 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. For VA benefits purposes, a 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 right to benefits accrued. 38 C.F.R. § 3.1(j). For entitlement to VA death benefits, the Veteran must have been married to the appellant for over one year or for any period of time if a child was born of the marriage. 38 C.F.R. § 3.54. 38 U.S.C. § 103 (c) requires that a marriage shall be proven as valid according to the law of the place where the parties resided at the time of the marriage or the law of the place whether the parties resided when the right to benefits accrued. The appellant contends that she did not cause the separation between her and the Veteran. See February 2020 hearing transcript. She asserts that the separation was caused by the Veteran, who had an affair and then decided to relocate to assist his ailing mother without telling her. Neither party contacted a lawyer nor filed any divorce papers. Id. The issue here is whether the separation between the appellant and the Veteran was such that it broke continuity of cohabitation, which is required to establish entitlement to death benefits. The Board finds it did not, for the reasons that follow, and therefore she is eligible for death benefits as his surviving spouse. The appellant and the Veteran were married in July 1983. The Veteran had one child prior to the marriage, born in 1978. The Veteran had an affair and separated from the appellant, getting a different apartment in the same state. However, the Veteran would still visit the appellant and were still considered husband and wife. The appellant reports that she did not believe the separation was a permanent separation and it was only going to be short-term. See February 2020 hearing transcript. According to the appellant, in 1993 or 1994, the Veteran moved to Florida to take care of his ailing mother. See February 2020 hearing transcript. The appellant states that she didn’t know about the Veteran’s move until he called her after he had relocated. The Veteran asked for a divorce in 1999, presenting the appellant with papers which she signed. However, the Veteran never filed the divorce papers. Id. The Veteran’s daughter has stated that the Veteran never dissolved his marriage with the appellant and never remarried. She states that it wasn’t until years after his death, with information provided from her paternal grandmother (the Veteran’s mother), that she realized the Veteran and appellant were never divorced. See February 2020 hearing transcript; see also June 2018 child statement. The Board finds the appellant’s statements are credible and her assertions are corroborated by the Veteran’s daughter. However, the Board notes that there are some inconsistencies in the Veteran’s files as to his marriage status after he and the appellant separated. In a December 1989 VA disability claim the Veteran listed himself as divorced. See December 1989 application for compensation or pension. The Board also notes that on his death certificate, it says that the Veteran was never married, which in fact he had been. See June 2007 death certificate. The appellant has explained that the Veteran was extremely private and did not let others know about his personal life and this may be a reason for the inconsistencies. See February 2020 hearing transcript. Notwithstanding the inconsistencies, the Board finds that the evidence does not show that the appellant intended to desert the Veteran, or any fault on her part in their separating. Rather, the credible evidence shows that the Veteran effectively deserted the marriage by moving to Florida. The appellant’s statements that the Veteran had an affair also indicate misconduct on the Veteran’s part that may have played a role in their separation. As there is no information or evidence to the contrary, the appellant’s otherwise credible statements as to the circumstances of their separation are accepted by the Board. See 38 C.F.R. § 3.53 (b). Accordingly, the appellant’s separation from the Veteran did not break continuity of cohabitation. See 38 C.F.R. § 3.53. At the time of the Veteran’s death, divorce papers had never been filed and he and the appellant had been married for many years. Thus, the marriage date requirements for entitlement to death benefits are satisfied. 38 U.S.C. §§ 1102, 1304; 38 C.F.R. § 3.54 (c). As the appellant and the Veteran were married at the time of his death, and as the continuity of cohabitation requirement is satisfied notwithstanding their separation, the appellant is eligible for VA death benefits as the Veteran’s surviving spouse. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. C. Slaughter, 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.