Citation Nr: 20030168 Decision Date: 04/29/20 Archive Date: 04/29/20 DOCKET NO. 20-04 184A DATE: April 29, 2020 ORDER Entitlement to recognition as the surviving spouse of the Veteran for Department of Veterans Affairs (VA) benefits purposes, including for the purpose of receiving dependency and indemnity compensation (DIC) benefits, survivors’ pension, and/or accrued benefits, is denied. FINDINGS OF FACT 1. The Appellant and the Veteran were married in January 1948. 2. The Veteran died in June 2003. 3. The Veteran and the Appellant did not cohabitate continuously from the date of marriage in January 1948 to the date of the Veteran’s death in June 2003. 4. The Appellant has remarried. CONCLUSION OF LAW The criteria for entitlement to recognition as the surviving spouse of the Veteran for VA benefits purposes, including for the purpose of receiving DIC benefits, survivors’ pension, and/or accrued benefits have not been met. 38 U.S.C. §§ 101(3), 103, 1310; 38 C.F.R. §§ 3.1(j), 3.5, 3.50. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served with the Recognized Guerrillas from May 1945 to January 1946. This matter comes before the Board of Veterans’ Appeals (Board) from a January 2020 Administrative Decision by the Milwaukee VA Pension Center. 1. Entitlement to recognition as the surviving spouse of the Veteran for VA benefits purposes, including for the purpose of receiving dependency and DIC benefits, survivors’ pension, and/or accrued benefits, is denied. The Appellant seeks to be recognized as the Veteran’s surviving spouse following the death of the Veteran in June 2003 for VA benefits purposes, including for the purpose of receiving DIC benefits, survivors’ pension, and/or accrued benefits. 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. “Surviving spouse” means a person of the opposite sex whose marriage to the Veteran meets the requirements of § 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 § 3.55, has not remarried or has not since the death of the Veteran and after September 19, 1962, lived with another person of the opposite sex and held himself or herself out openly to the public to be the spouse of such other person. 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. The statement of the surviving spouse as to the reason for the separation will be accepted in the absence of contradictory information. 38 C.F.R. § 3.53(b). 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. State laws will not control in determining questions of desertion; however, due weight will be given to findings of fact in court decisions made during the life of the Veteran on issues subsequently involved in the application of this section. As the Board finds that the Appellant did not live continuously with the Veteran from the time of their marriage to the time of the Veteran’s death and the Appellant has remarried, the Board finds that the Appellant is not recognized as the Veteran’s surviving spouse for VA benefits purposes. In the instant case, the evidence shows that the Appellant and Veteran married in January 1948. January 1948 See Archdiocese of Lingayen-Dagupan Certificate of Marriage; January 1948 Marriage Contract by the Philippine Statistics Authority; and June 2002 certified copy of Diocese of Alaminos Certificate of Marriage. With respect to their marriage, the record contains conflicting evidence as to whether the Appellant and Veteran were married at the time of the Veteran’s death. In the July 2002 VA Form 21-0526, Veteran’s Application for Compensation and/or Pension, the Veteran notes the Appellant as his spouse. In the February 2018 VA Form 21-534, Application for Dependency and Indemnity Compensation or Death Pension by a Surviving Spouse or Child, the Appellant indicated that she was the Veteran’s surviving spouse. However, a December 2017 certification letter from the Philippines Statistics Authority requested by the Veteran’s daughter notes that the Veteran does not appear in the National Indices of Marriages. While the Veteran’s June 2003 death certificate indicates that he was married at the time of his death, the Appellant is not specifically mentioned as his spouse in the Veteran’s death certificate. The Veteran’s daughter, [REDACTED], is listed as the informant on the Death Certificate. See June 2003 Philippine Statistics Authority Certificate of Death. Furthermore, there is evidence in the record that indicates the Appellant has remarried. In the February 2018 VA Form 21-534, the Appellant indicated that she had remarried. In a subsequent letter in February 2018, the Appellant requested that VA Form 21-534 be amended to indicate that she had not remarried. However, the Appellant did not provide an explanation for the request to amend the application to indicate that she had not remarried. With respect to cohabitation, the record contains evidence that the Appellant had not lived continuously with the Veteran from their marriage in January 1948 to the date of the Veteran’s death in June 2003. In the February 2018 VA Form 21-534, Application for DIC, Death Pension, and/or Accrued Benefits, the Appellant checked the box indicating she did not continuously live with the Veteran up until his death. The Appellant did not provide an explanation regarding their separation. In February 2018, the Appellant requested that VA Form 21-534 be amended to indicate that she and the Veteran lived continuously from the date of their marriage until the Veteran’s death. In December 2019, the VA sent a letter to the Appellant requesting information regarding their separation. However, the Appellant did not reply to this letter. Based on the evidence above, even assuming that the Veteran and Appellant were married at the time of the Veteran’s death in June 2003, the Board finds that the Appellant remarried, as indicated in the February 2018 VA Form 21-534. The Board also finds that the Appellant did not live continuously with the Veteran from the time of their marriage to the time of the Veteran’s death, as indicated on the February 2018 VA Form 21-534 and suggested in the death certificate. Further, no exception to the requirement of cohabitation has been proffered, as the evidence does not show that the separation was due to the misconduct of, or procured by, the Veteran without the fault of the spouse. The evidence also does not show that the Appellant and the Veteran 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. 38 C.F.R. § 3.53(b), see Alpough v. Nicholson, 490 F.3d 1352, 1357 (Fed. Cir. 2007). While the Appellant requested to amend the February 2018 VA Form 21-534 to indicate she and the Veteran had lived together continuously and that she had not remarried, she did not provide an explanation as to why the amendment was necessary and why she originally indicated that they had not cohabitated and that she had remarried, even after the VA requested more information regarding their separation in December 2019. In sum, the most probative evidence establishes that the that the Appellant has remarried. The evidence also establishes that the Appellant did not cohabitate continuously with the Veteran until his death. Additionally, the evidence does not show that the separation was due to the misconduct of, or procured by, the Veteran without the fault of the surviving spouse. As such, the Appellant cannot be recognized as the Veteran’s surviving spouse for VA benefits purposes, to include for the purpose of receiving DIC benefits, survivors’ pension, and/or accrued benefits. Thus, the appeal is denied. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. E. Grossman, 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.