Citation Nr: 20030191 Decision Date: 04/29/20 Archive Date: 04/29/20 DOCKET NO. 17-53 622 DATE: April 29, 2020 ORDER The claim of entitlement to recognition as the Veteran's surviving spouse for the purpose of establishing eligibility to VA death benefits is granted. FINDING OF FACT The evidence does not show any intent on the part of the Appellant to desert the Veteran during their marriage, and the separation they experienced did not break the requirement of continuous cohabitation. CONCLUSION OF LAW The criteria are met for the Appellant to be recognized at the Veteran’s surviving spouse. 38 U.S.C. §§ 101 (3), 1102, 1304, 1310, 1311, 1541, 5107; 38 C.F.R. §§ 3.1 (j), 3.50, 3.53, 3.205. REASONS AND BASES FOR FINDING AND CONCLUSION The Appellant seeks to establish that she is the surviving spouse of the Veteran who served on active duty from November 1972 to July 1980. He died in August 2016. A March 2019 Board decision denied the claim for entitlement to recognition of the Appellant as the Veteran’s surviving spouse for purposes of establishing basic eligibility for VA Dependency and Indemnity Compensation (DIC)and death pension benefits. The Veteran appealed the Board’s decision to the Court. A November 2019 Memorandum Decision from the Court vacated the March 2019 Board decision and remanded the case for further consideration consistent with an October 2019 Joint Motion for Remand (JMR). 1. The claim of entitlement to recognition as the Veteran's surviving spouse for the purpose of establishing eligibility to VA death benefits VA death benefits may be paid to a surviving spouse who was married to the veteran for: (1) One year or more prior to the veteran’s death; or, (2) 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. §§ 1102, 1304, 1541; 38 C.F.R. § 3.54. One claiming to be the spouse of a veteran has the burden to come forward with a preponderance of evidence of a valid marriage under the laws of the appropriate jurisdiction. See Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). The term “surviving spouse” is defined as a person who: (1) Was the lawful spouse of a veteran at the time of the veteran’s death; (2) 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; and, (3) has not remarried. 38 U.S.C. § 101 (3); 38 C.F.R. § 3.50 (b)(1); see Gregory v. Brown, 5 Vet. App. 108 (1993); see also VA O.G.C. Prec. Op. No. 3-2014. The continuous cohabitation requirement has been met when the evidence shows that any separation was due to the misconduct of, or procured by, the veteran without fault of the surviving spouse. Temporary separations which occur, including those caused for the time being through fault of either party, will not break the continuity of the cohabitation. 38 C.F.R. § 3.53 (a). 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. If the evidence establishes that the separation was either procured by the veteran, or was by mutual consent and that the parties lived apart for purposes of convenience, health, business, or any other reason that 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). That is, “a separation by mutual consent does not constitute desertion unless the separation resulted from misconduct or communication of a definite intent to end the marriage by the surviving spouse.” Alpough v. Nicholson, 490 F.3d 1352, 1357 (Fed. Cir. 2007). There is a two-part test for determining whether there is continuous cohabitation. Gregory v. Brown, 5 Vet. App. 108, 112 (1993). First, the spouse must be free of fault at the time of separation; second, the separation must have been procured by the veteran or due to the veteran’s misconduct. Id. The Veteran and Appellant were married as of December 1987, however, the evidence reflects that the Appellant did not live with the Veteran continuously from the date of marriage to the date of the Veteran’s death. In this regard, the Board notes that, in the Veteran’s February 1997 application for compensation, he indicated that he was married, but did not live together with his spouse. He further indicated that the reason for the separation was “a lot of stressful involvement for both parties.” See February 1997 Application for Compensation. Thereafter, in July 2003, December 2006, June 2009, and October 2010, the Veteran indicated that he had been separated from his wife. See July 2003 Income Net Worth and Employment Status, December 2006 Statement in Support of Claim, June 2009 Declaration of Status of Dependents, and June 2009 Statement in Support of Claim. Notably, the Appellant testified in March 2016 that they were separated for about 30 years and that she lived in Tennessee and he lived in Ohio. See March 2016 Hearing Transcript. However, on the Appellant’s Application for DIC, Death Pension, and/or Accrued Benefits, she reported the reason for the separation of marriage was “He [the Veteran] walked out” in 1990. After a review of the evidence of record, the Board finds that the Appellant was the legal spouse of the Veteran at the time of his death, and there is no indication that she was remarried or held herself out as the spouse of another. The issue to be determined here is whether the “continuous cohabitation” requirement has been met. 38 C.F.R. § 3.50. The first part of the test for establishing continuous cohabitation is determining whether there was fault on the part of the spouse at the time of the separation. Gregory, supra. Here, the evidence does show that they were separated around 1990. However, the record contains conflicting evidence as to whether the Appellant was the cause of that separation. The Veteran’s past statements in the record reported that they separated due to stressful involvement of both parties, but the Appellant has reported that the Veteran walked out on her. Therefore, the Board finds that the evidence is in equipoise showing that the separation was not the Appellant’s fault. (Continued on the next page)   The second part of the test requires that the separation must be due to the veteran’s misconduct or procured by him. Id. The regulations provide that the statement of the spouse as to the reason for the separation will be accepted in the absence of contradictory information. 38 C.F.R. § 3.53 (b). Here, the Appellant has stated that the Veteran “walked out on her”. As discussed, there is contradictory information as to the cause of the parties separating. Regardless, there is no evidence that this separation was not procured by the Veteran, or agreed upon by the parties; rather, the evidence shows the separation occurred. Under these circumstances, doubt must be resolved in the claimant’s favor. 38 C.F.R. § 3.102. Accordingly, the Board finds that the evidence establishes the separation was as likely as not procured by the Veteran. As the evidence does not show an intent to desert the Veteran, the continuity of cohabitation is not considered broken. 38 C.F.R. § 3.53 (b). Based on the above evidence, the Board finds that the Appellant is entitled to recognition as the surviving spouse. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dworkin, 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.