Citation Nr: 20046460 Decision Date: 07/10/20 Archive Date: 07/10/20 DOCKET NO. 06-31 432 DATE: July 10, 2020 ORDER E. C-S. may not be recognized as the Veteran’s surviving spouse for Department of Veterans Affairs (VA) benefit purposes. FINDINGS OF FACT 1. The Veteran and E. C-S. were married in May 1980. 2. The Veteran and E. C-S. lived separate and apart after March 4, 1993, and entered into an August 1993 separation agreement. 3. An April 1993 North Carolina District Court Consent Order states that the Veteran and E. C-S. were represented by legal counsel and “were adjudged to be legally separated on or about March 4, 1993.” 4. E. C-S. testified at the April 2008 Board hearing that the Veteran had moved out of their home at the behest of C. C., a childhood friend, and relocated from North Carolina to Oregon in 1993. 5. In July 1994, the Veteran and C. C., were married in Massachusetts. 6. A May 1996 North Carolina District Court Judgment for Absolute Divorce states that E. C-S., averred that she and the Veteran had lived separately and apart since March 1993 and the Parties were granted an absolute divorce. 7. The Veteran died in July 1996. 8. The Veteran lived continuously with C. C., from July 1994 until his death. 9. A November 2008 North Carolina Court of Appeals decision states that the Veteran and E. C-S., “had ceased cohabitation by early 1993” and determined that the “May 1996 judgment granting absolute divorce was void based upon the district court’s lack of subject matter jurisdiction” to grant the divorce. CONCLUSION OF LAW E. C-S. may not be recognized as the Veteran’s surviving spouse for VA benefits purposes. 38 U.S.C. §§ 101(3), 5107; 38 C.F.R. § 3.50(b). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from January 1968 to December 1969. He served in the Republic of Vietnam. The Veteran died in July 1996. E. C-S., (hereinafter Appellant 1) appeared at an April 2008 hearing before the undersigned Veterans Law Judge. The hearing transcript is of record. In July 2008, the Board of Veterans’ Appeals (Board) determined that Appellant 1 could not be recognized as the Veteran’s surviving spouse for VA benefit purposes. In August 2008, Appellant 1 submitted a Motion for Reconsideration of the July 2008 Board decision. In December 2008, the Board denied the Motion for Reconsideration. Appellant 1 appealed to the United States Court of Appeals for Veterans Claims. In September 2010, the United States Court of Appeals for Veterans Claims granted the Parties’ Joint Motion for Remand, vacated the July 2008 Board decision, and remanded the appeal to the Board for additional action. In February 2015, the Board again determined that Appellant 1 could not be recognized as the Veteran’s surviving spouse for VA benefit purposes. Appellant 1 appealed to the United States Court of Appeals for Veterans Claims. In February 2017, the United States Court of Appeals for Veterans Claims vacated the February 2015 Board decision and remanded the appeal to the Board for additional action. The Board notes that this appeal involves a simultaneously contested claim. A simultaneously contested claim refers to the situation in which the allowance of one claim results in the disallowance of another claim involving the same benefit or the payment of a lesser benefit to another claimant. 38 C.F.R. § 20.3(p). The recognition of an individual as the Veteran’s surviving spouse constitutes a simultaneously contested claim when more than one individual seeks that status. Special procedural regulations are applicable to such claims. Recognition as the Veteran's Surviving Spouse for VA purposes Appellant 1 asserts that she should be recognized as the Veteran’s surviving spouse for VA benefit purposes because her separation from the Veteran prior to his death was due to his erratic and violent behavior toward her and their children associated with service-connected non Hodgkin’s lymphoma and the treatment thereof and/or the improper actions of C. C. (hereinafter Appellant 2) to remove the Veteran from their household and to exploit his diminished physical and mental capacity for her own gain. A surviving spouse for VA benefit purposes is the spouse of the veteran at the time of the veteran’s death 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. 38 U.S.C. § 101(3); 38 C.F.R. § 3.50(b). Appellant 1 and the Veteran were legally married in May 1980. While the Veteran sought to divorce Appellant 1 and subsequently obtained a May 1996 North Carolina District Court Judgment for Absolute Divorce, a November 2008 North Carolina Court of Appeals decision, issued 12 years after the Veteran’s death, determined that the “May 1996 judgment granting absolute divorce was void based upon the district court’s lack of subject matter jurisdiction” to grant the divorce. Therefore, the Board acknowledges that the Veteran remained legally married to Appellant 1 at the time of his death in July 1996 although he and Appellant 2 believed that the Veteran had been legally divorced and that they were free to marry. In July 1994, the Veteran and Appellant 2 were married in Massachusetts. The Veteran died in July 1996. He lived continuously with Appellant 2 from July 1994 until his death. Appellant 1 concedes that she did not live continuously with the Veteran from their May 1980 marriage to the date of the Veteran’s death. She contends that the separation was caused by the Veteran’s violent or bizarre behavior towards her and their children, which has been attributed by various medical professionals to the ultimately fatal service connected non Hodgkin’s lymphoma and the treatment of that condition and/or the improper actions of Appellant 2. The issue before the Board is therefore whether Appellant 1 and the Veteran’s separation at the time of his death was due to the misconduct of or procured by the Veteran without the fault of Appellant 1. The Veteran and Appellant 1 were married in May 1980 and had three children. Thereafter, the Veteran and Appellant 1 experienced marital discord. An August 1993 separation agreement between the Veteran and Appellant 1, signed by both parties, states that: the parties had initially separated in March 1991; subsequently attempted a reconciliation; “ceased all marital relations in September 1991 and lived separate and apart from March 1993;” and “the Court adjudicated the parties separated on the 4th day of March, 1993; and since that time, the parties have lived separate and apart.” The separation agreement does not indicate any inappropriate behavior by the Veteran resulting in the separation. An April 1993 North Carolina District Court Consent Order states that the Veteran and Appellant 1 were represented by legal counsel and “were adjudged to be legally separated on or about March 4, 1993.” The consent order makes no reference to violence or other misbehavior by the Veteran towards Appellant 1. A June 1994 memorandum from Appellant 1 to the Veteran sought to enforce the terms of “our Consent Order to our separation agreement” including his right for a 60 day summer visitation period with his three children. She commented that “please keep in mind that I do want the children to attend and enjoy your wedding” and “I want them to spend time with you as they love you very much.” A May 1996 North Carolina District Court Judgment for Absolute Divorce states that Appellant 1 averred that she and the Veteran had lived separately since March 1993 and the Parties were granted an absolute divorce based on their separation since March 1993. The Court made no reference to violence or other misbehavior by the Veteran towards Appellant 1. An August 1996 Application for Dependency and Indemnity Compensation, Death Pension and Accrued Benefits by a Surviving Spouse or Child (Including Death Compensation if Applicable), VA Form 21-534, states that Appellant 1 had been divorced from the Veteran in August 1993 and was “filing for surviving children only.” In a June 1997 deposition conducted as part of a civil lawsuit between Appellant 1 and Appellant 2, Appellant 1 stated that: she had been divorced from the Veteran and they were no longer married as of May 1995; the Veteran had made intermittent child support payments per the parties’ consent decree; she had sought to compel the Veteran to pay his child support arrearages; and while the Veteran lived in Oregon prior to his death, she had never lived in Oregon. A June 1999 marriage certificate indicates that Appellant 1 married S. B. and reports that Appellant 1 had been divorced in May 1996 due to “ir[econcilable] differences.” Appellant 1 and S. B. were divorced in December 2000. At the April 2008 Board hearing, Appellant 1 testified that: “near the end of ’93, my husband became emotionally detached and mentally incompetent to the point that the child psychologist told me that I had to be very careful for our safety;” “it got to a point where [Appellant 2], a friend of his from his childhood, stepped in, found out he was dying, and she stepped in and encouraged him to move to Oregon;” and [Appellant 2] coerced him to move out of the home in ’93 – August 1993.” She concurrently stated that the Veteran had moved out of their home “at the time of the separation and he went directly to Oregon” and he went to Oregon in August 1993. Appellant 1 testified further that “I never filed any legal work for separation or divorce or anything.” Appellant 1 asserts that she should be recognized as the Veteran’s surviving spouse for VA benefit purposes as her separation from the Veteran from March 1993 to his death in July 1996 was caused by or otherwise procured by either the Veteran or Appellant 2. The Board finds that the Appellant 1’s contentions made in furtherance of a claim for benefits are in disagreement with the evidence of record of record, including the more contemporaneous evidence of record, including her statements at a 1997 deposition associated with a civil lawsuit against Appellant 2 and her testimony at the April 2008 Board hearing. The record establishes that the Veteran and Appellant experienced marital discord; initially separated in March 1991; unsuccessfully attempted to reconcile; permanently lived separate and apart starting in March 1993; were legally separated in March 1993 by a North Carolina court; and believed that they had divorced in May 1996. Appellant 1 has testified that the Veteran sought to dissolve their marriage in order to marry Appellant 2. While the divorce judgment was voided due the lower court’s error as to its subject matter jurisdiction in 2008, some 12 years after the Veteran’s death, the Veteran was unaware of the legal impediment to his remarriage, and Appellant 2 was unaware of any legal impediment to marriage to the Veteran. Appellant 1 has submitted several competent written statements from medical professionals stating the service-connected non Hodgkin’s lymphoma and the treatment thereof affected the Veteran’s mental faculties and his behavior toward her and their children. The Board notes the probative value of such statements. However, Appellant 1 testified that several of the cited incidents occurred in August 1993, months after they had legally separated. Indeed, the record establishes that the separation between the Veteran and Appellant 1 was not the result of the Veteran’s alleged improper behavior towards Appellant 1, but rather his putative divorce and subsequent remarriage to Appellant 2. A preponderance of the objective evidence of record establishes that Appellant 1 did not live with the Veteran continuously from the date of their marriage to the date of the Veteran’s death due to their documented legal separation, putative divorce, and his remarriage to Appellant 2. While acknowledging that the ultimately fatal service connected non Hodgkin’s lymphoma and the treatment thereof undoubtedly affected the Veteran’s mood and behavior, the Board finds marital discord and the Veteran’s wish to be married to a different individual were the cause of the separation between the Veteran and Appellant 1. The Board finds that the evidence of record does not establish that the separation was due to the misconduct of, or procured by, the veteran without the fault of the spouse. The evidence does not support a finding that Appellant 1 was without fault in the separation. The evidence shows that Appellant 1 and the Veteran ceased all marital relations in September 1991 and lived separate and apart from March 1993. The evidence does not support a finding that was due to misconduct by the Veteran or without fault of Appellant 1. Therefore, the Board concludes that Appellant 1 may not be recognized as the Veteran’s surviving spouse for VA purposes. 38 U.S.C. § 101(3); 38 C.F.R. § 3.50(b). Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. T. Hutcheson, 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.