Citation Nr: 20023063 Decision Date: 04/02/20 Archive Date: 04/02/20 DOCKET NO. 18-45 193 DATE: April 2, 2020 ORDER Recognition of the Appellant as the Veteran’s surviving spouse for purposes of establishing basic eligibility for VA Dependence and Indemnity Compensation (DIC) and death pension benefits is denied. FINDINGS OF FACT 1. The Appellant and the Veteran were married in September 2012. 2. As of April 2016, the Appellant and the Veteran were separated, and there was not continuous cohabitation between the Appellant and the Veteran throughout their marriage until the Veteran’s death. 3. The preponderance of the evidence is against a finding that the separation was due to the misconduct of, or procured by, the Veteran or was by mutual consent or temporary. CONCLUSION OF LAW The criteria for recognition of the Appellant as the surviving spouse of the Veteran are not met. 38 U.S.C. §§ 101(3), 103, 1102, 1304, 1310, 1541, 5107(b); 38 C.F.R. §§ 3.1(j), 3.50, 3.53, 3.54, 3.102, 3.205. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1948 to October 1952. He was a prisoner of war in Korea from February 1951 to May 1951. The Veteran died in April 2018. The Appellant seeks to establish that she is his surviving spouse for VA DIC and death pension purposes. In the Appellant’s September 2018 VA Form 9, substantive appeal, she did not request a hearing before the Board. Thereafter, in June 2019, she attempted to file a VA Form 10182, Decision Review Request: Board Appeal, in which she requested a hearing before the Board. However, as advised by letter in August 2019, the Board could not accept her VA Form 10182; therefore, the hearing request is invalid. Nevertheless, it is noted that in correspondence received in August 2019, the Appellant also indicated she was withdrawing her request for a Board hearing. Thus, a hearing in this case is not necessary. 1. Entitlement to recognition of the Appellant as the Veteran’s surviving spouse for purposes of establishing basic eligibility for VA DIC and death pension benefits. Legal Criteria Subject to certain requirements, VA death benefits may be paid to a surviving spouse of a Veteran. 38 U.S.C. § 1102; 38 C.F.R. § 3.54. Consequently, “surviving spouse” status is a threshold requirement for DIC, death pension, and accrued benefits. A “surviving spouse” is defined as 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(3); 38 C.F.R. § 3.50. 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. Id. A separation by mutual agreement, without an intention to desert by the surviving spouse, also does not break the continuity of cohabitation. See Alpough v. Nicholson, 490 F.3d 1352 (2007). The United States Court of Appeals for Veterans Claims (Court) has determined that 38 U.S.C. § 101(3) and 38 C.F.R. § 3.50(b)(1) set forth a two-part test to determine whether a spouse will be deemed to have continuously cohabited with the Veteran when there has been a separation. Not only must the spouse be free of fault at the time of the separation, but it must be found that the separation “was due to the misconduct of, or procured by, the Veteran.” In assessing the reasons for a separation between a Veteran and his or her spouse, fault or the absence of fault is to be determined based on an analysis of conduct at the time of the separation. Gregory v. Brown, 5 Vet. App. 108, 112 (1993). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert, 1 Vet. App. At 57. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Merits The Appellant seeks death benefits as the former spouse of the Veteran. There is no dispute that the Veteran and the Appellant were married in September 2012. See e.g., Certified Marriage License, December 2012 and Marriage Certificate, June 2018. Therefore, the question to be addressed in this case is whether the Appellant cohabitated with the Veteran continuously from the date of marriage to the date of his death. See 38 C.F.R. § 3.52, 3.53. The Appellant advances several contentions in support of her claim that there was, or should have been, continuous cohabitation between the Veteran and herself prior to his death; and that any separation was the product of actions by others outside their marriage. For example, she asserts that while the Veteran showed signs of dementia when they were married, he was capable of making his own decisions. See August 2019 Appellant Correspondence. Nevertheless, during the marriage a fiduciary was appointed for the Veteran who mismanaged his money and as a result they lost their house. See e.g., May 2019 and August 2018 Appellant Correspondence. She further states that the County, without proper legal process, then placed the Veteran in a nursing home and prevented her from seeing him until his death because they disapproved of their marriage because of differences in their ages and races and stated that she was crazy. See June 2019 Correspondence. Lastly, she asserts that she was a good wife, gave the Veteran the very best of care and while the Veteran disagreed with the decisions that were made placing him in a nursing home, no one would help him. See June 2019 Appellant Correspondence. The Board has carefully reviewed the Veteran’s claims file and finds that the evidence reflects that the Appellant did not live with the Veteran continuously from the date of the marriage to the date of the Veteran’s death. In this regard, the record reflects that the Veteran was diagnosed with dementia in 2006. See April 2006 VA Mental Disorders Examination. Earlier medical evidence indicates that the Veteran had long standing lapses of “consciousness” since returning from Korea and his family (his first wife or one of his three children) did not permit him to walk alone or drive a car. See August 1978 Social Security Administration (SSA) Evaluation. The Veteran reported that his first wife of more than 45 years was deceased on August 2009 and he remarried in September 2012. See December 2012 VA 21-686c Declaration of Status of Dependents. In January 2013, the Veteran’s representative from the Missouri Veterans Commission requested a non-program field examination because of suspicious incidents involving the Veteran and the appellant and a concern that the Veteran was being neglected or abused. See February 2006 VA Form 21-22 and January 2013 VA Form 21-4138 Statement in Support of Claim. The Veteran’s representative noted that the Missouri State Division of Health and Senior Services had also visited the Veteran and made some observations. VA treatment records document concerns that the Veteran’s spouse was engaging in drug seeking behaviors. See e.g., February 2014 Emergency Department Note and August 2014 Hematology and Oncology Note, Columbia VA Medical Center (VAMC). The Veteran’s clinical social worker also documented a phone call from the Appellant demanding that her husband get the benefits he deserved including hearing aids, glasses, a new house, someone to mow our yard and money. See July 2014 Social Work Telephone Encounter Note, Columbia VAMC. In July 2014, the Veteran was admitted into the hospital after leaving the house unsupervised in the evening and walking to a nearby business complaining of chest pain. The Appellant indicated she was unaware that he had left the house. See July 2014 Nursing Note, Columbia VAMC. In March 2015, an examination for housebound status or permanent need for regular aid and attendance was completed by the Veteran’s treating VA physician. The Veteran was diagnosed with dementia, leukemia and hypertension. The examination report indicated that the Veteran could not prepare his own meals, could not bathe or tend to hygiene needs unassisted, was legally blind, could not manage his own financial affairs, was incontinent, and required medication management and nursing home care. In a November 2015 VA fiduciary department supervision form, a private doctor from the R.C. Health Department indicated that the Veteran did not have the ability to manage his own financial affairs. See Medical Treatment Record, November 2015. A handwritten note at the bottom of the page added “this patient is now legally married, and his spouse appears to be capable of managing their financial affairs”. Subsequently, the VA made a finding of incompetency and appointed an independent fiduciary to manage the Veteran’s benefits over the Appellant’s objection. See July 2015 Rating Decision, August 2015 Notification Letter and May 2015 Appellant Correspondence. Several months after the appointment of a VA fiduciary, felony criminal charges were filed against the Veteran for passing bad checks; the Appellant was charged as a co-conspirator. See Civilian Police Reports, October 2015. The criminal charges were dismissed against the Veteran who was found totally disabled as a result of his dementia. The Appellant was convicted. A court appointed guardian and conservator was assigned and the Veteran was placed in a long-term residential care facility. See April 2016 Judgement of Incapacity and Disability received June 2018. The court appointed guardian conducted a home visit and noted that the Appellant and her boyfriend shared a bed and the Veteran slept on the couch. The Appellant could not tell the guardian what medications the Veteran required. No medicine bottles were produced. However, the guardian was shown a weekly medication box filled with loose medications. The guardian also indicated that the Appellant had on numerous occasions wrongfully forged the Veteran’s name on various paperwork pertaining to benefits including on a Social Security retirement check which she cashed using a revoked power of attorney. See June 2018 Third Party Correspondence. After the Veteran arrived at the residential care facility, his primary care physician prohibited the Appellant from visiting him out of concern for his safety and well-being. See August 2016 Handwritten Medical Note received June 2018. The guardian indicated that she removed the Veteran from the home due to his need for a higher level of care than the Appellant could provide. However, after reviewing the medical evidence received from the VA hospital and discussions with the Veteran’s new primary care physician she not only supported the physician’s order prohibiting contact and visitation of the Veteran by the Appellant, she also contacted a Judge to see if a restraining order was necessary. The Board notes that there is no evidence to suggest and the Appellant has not otherwise asserted, that her separation from the Veteran was due to his misconduct, or procured by him, or was temporary or was by mutual consent. Rather, it is the Appellant’s argument that she is the surviving spouse of the Veteran because they were married, and she was a good wife to him. Further, she contends the events that resulted in their separation were unfair and unjust. Consistent with the Appellant’s proposition the Board acknowledges that a few months prior to the Veteran’s passing, she received an apportionment of his service-connected disability compensation. See January 2018 Notification Letter. However, a review of the record also shows that this was awarded only because it was ultimately recognized that the Veteran was being paid an extra amount for having claimed the Appellant as a dependent and therefore, she was found entitled to that extra amount (but no more). Furthermore, the Board finds the preponderance of the evidence is against a finding that the Appellant may be recognized as the deceased Veteran’s surviving spouse for VA death benefits purposes. See 38 C.F.R. §§ 3.50, 3.53. While the Appellant is competent to relate the facts, which caused her separation from the Veteran as she believes them, the Board finds that those beliefs are inconsistent with the statements and evidence contained in the record as a whole; and therefore, not credible. The Board accords them no probative weight. The Board accords great weight to the VA and residential facility physicians responsible for the care of the Veteran prior to his death. As medical professionals they are competent and credible. Significantly, their statements were consistent and demonstrated similar concerns for the safety and welfare of the Veteran, who as a result of his dementia disability was vulnerable to misdeeds by others. The Board acknowledges the November 2015 statement from the R.C. Health Department which found that the Appellant was capable of managing hers and the Veteran’s financial affairs. As a medical professional, the doctor is competent and credible to offer an opinion regarding the competency of both the Veteran and the Appellant. Nevertheless, the Board accords it no weight in light of the fact that it was based upon one meeting with the Appellant and that the Appellant’s actions throughout the marriage, and particularly subsequent to that November 2015 statement, contradict his conclusion. As outlined above, the record establishes that the Appellant’s conduct throughout the marriage included neglect of the Veteran, attempts to use the Veteran’s illnesses to improperly obtain narcotics and causing him to unwittingly and unknowingly engage in criminal conduct for money, which rendered it impossible for him to remain safely in the marital relationship. As previously discussed, substantial medical and legal resources were required to protect him in the aftermath of these actions. (Continued on the next page)   In sum, the preponderance of the evidence is against a finding that the Appellant is the deceased Veteran’s surviving spouse for VA death benefits purposes. See 38 C.F.R. §§ 3.50, 3.53. The evidence clearly shows that the Appellant and the Veteran did not continuously cohabitate from the date of marriage to the Veteran’s death. The Board also finds that the separation was not due to the misconduct of, or procured by, the Veteran without the fault of the spouse or that the separation was temporary or mutual. Accordingly, the appellant does not qualify as a surviving spouse for purposes of VA benefits. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Alexander 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.