Citation Nr: 20041697 Decision Date: 06/18/20 Archive Date: 06/18/20 DOCKET NO. 17-28 269 DATE: June 18, 2020 ORDER Recognition as the surviving spouse for VA benefits purposes, to include entitlement to death pension, is granted. FINDING OF FACT The appellant and the Veteran were married from 2001 until his death in December 2011. They were separated for a period of three months, but the record does not show that the appellant intended to desert the marriage. CONCLUSION OF LAW The appellant is eligible to be the surviving spouse of the Veteran for VA benefits purposes, to include entitlement to death pension. 38 U.S.C. § 101; 38 C.F.R. §§ 3.50, 3.53. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1973 to August 1975. He died in December 2011. This matter comes before the Board on appeal from an October 2014 VA decision, which denied recognition of the appellant as the Veteran’s surviving spouse. In April 2020, the appellant testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been reviewed. 1. Entitlement to recognition as the Veteran's surviving spouse for pension purposes The appellant seeks recognition as the surviving spouse of the Veteran. VA death benefits may be paid to a surviving spouse who was married to a veteran: (1) before the expiration of 15 years after the termination of the period of service in which the injury of disease causing death was incurred or aggravated, (2) one year or more prior to the Veteran's death, 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. §§ 1102, 1304, 154; 38 C.F.R. § 3.54. The term "surviving spouse" means a person who was the spouse of the 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 in the case of temporary separations) 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, 3.53. 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). The RO found that the appellant is not considered a “surviving spouse.” In an administrative decision issued in October 2014, the VA Pension Maintenance Center found that the Veteran and the appellant were separated due to misconduct on the part of the appellant. The administrative decision found that the appellant could not be recognized as the Veteran’s surviving spouse, as the requirement of continuous cohabitation was not met. The administrative decision relied on eligibility verification reports submitted by the Veteran in March 2007 and 2011. An eligibility verification report submitted by the Veteran in March 2007 reflects that he reported that the appellant left him for another man. An eligibility verification report submitted in 2011 indicated that they were living apart. The appellant disagreed with the administrative finding. She contends that she was only separated from the Veteran for three months when he was being treated at the VA. At the Board hearing, she testified that she still visited him during that time and still considered herself married. The appellant testified that she and the Veteran were having some differences due to the Veteran’s issues at the time that she wrote to the VA in 2006, but she never intended to abandon the marriage. The record includes other credible supporting evidence that the appellant and the Veteran were not separated at the time of his death. The record contains several lay statements from friends and family members indicating that the appellant and the Veteran lived together during their marriage. Further, the appellant is listed as the informant and the surviving spouse on the Veteran’s death certificate. In sum, the most probative evidence shows that the appellant and Veteran were married from 2001 to 2011. They were separated for three months, but it is shown by credible evidence that the appellant did not intend to end the marriage. As a result, the continuity of cohabitation was not broken, and the appellant is entitled to recognition as the Veteran’s surviving spouse. 38 C.F.R. § 3.53 (b). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Catherine Cykowski 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.