Citation Nr: A21016475 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 191016-41902 DATE: October 6, 2021 ORDER Recognition of the appellant as the surviving spouse of the Veteran for eligibility to Dependency and Indemnity Compensation (DIC) benefits is denied. FINDING OF FACT 1. The evidence shows that the Veteran and appellant were married at the time of the Veteran's death. 2. However, the greater weight of the evidence shows the appellant and the Veteran did not continuously cohabitate prior to his death. CONCLUSION OF LAW The appellant is not recognized as the Veteran's surviving spouse for establishing entitlement to DIC benefits. 38 U.S.C. §§ 101, 103, 1102; 38 C.F.R. §§ 3.50, 3.52, 3.53, 3.54, 3.206. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served from June 1968 to March 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a decision of a Department of Veterans Affairs (VA) Regional Office (RO). In the October 2019 VA Form 10182, Decision Review Request: Board Appeal, the appellant elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the appellant, or her representative, at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). In May 2021 a Board hearing was held before the undersigned. A transcript of the hearing is associated with the claims file. Recognition of the appellant as the surviving spouse of the Veteran for eligibility to DIC benefits The Veteran died in May 2016. The appellant is seeking recognition as his surviving spouse for purposes of entitlement to VA benefits. The appellant contends that she should be recognized as the Veteran's surviving spouse for VA purposes. Specifically, she asserts that they were married and continuously cohabitated with the Veteran until the time of his death. As a preliminary matter, the appellant and the Veteran were married June 1982 in Ohio. In a December 2014 statement, the Veteran applied for benefits, noting he only left his home with either his son or wife. At a March 2015 VAMC visit, the Veteran reported being separated from his spouse. In a March 2015 correspondence, the Veteran reported being faced with a debt which his spouse had incurred. He reported they were estranged and separated. He was requesting VA to review his financial status and grant him a waiver for his spouse's debt. A Separation Agreement was submitted by the Veteran, signed, and dated by himself March 8, 2015. The appellant's signature is not on the supplied Separation Agreement. The agreement explains the parties have lived separate and apart since September 2010, and neither party attends the other's living space or work without invitation or approval. It is not evident if this was filed with a court. Following this submittal, the VA removed the appellant from the Veteran's pension award effective October 1, 2010, as there was a change in spouse status. In October 2019, the appellant asserted the supplied separation agreement did not contain her signature, therefore it is not valid. At the Board hearing, the appellant asserted they lived together as husband and wife until the Veteran died. She reported that between the two of them they had eight children, 14 grandchildren and 7 great grandchildren who would attest to the fact the couple were together until the Veteran's death. To date, with the exception of a physician's statement from Piedmont Physicians dated December 2019, that noted the Veteran and appellant were a nice couple, no statements have been received attesting that the Veteran and appellant continuously cohabitated until the time of his death. VA death benefits may be paid to a surviving spouse who was married to the Veteran one year or more prior to the Veteran's death, or for any period of time if a child was born of the marriage. 38 U.S.C. § 1102 ; 38 C.F.R. §§ 3.50, 3.54. The term "surviving spouse" means a person who was married to 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 surviving spouse). 38 U.S.C. § 101 (31); 38 C.F.R. § 3.50. Thus, there are two requirements to be recognized as a surviving spouse under VA law: marriage and continuous cohabitation. With regard to the continuous cohabitation requirement, such will be considered as being 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). If the separation of the parties was by mutual consent and the parties lived apart for purposes of convenience, health, business, or any other reason which did not show intent on the part of the surviving spouse to desert the veteran, continuity of cohabitation will not be considered as having been broken. 38 C.F.R. § 3.53 (b). First, the Board finds that the appellant and the Veteran were married at the time of his death. Although, the record shows that the Veteran supplied a separation agreement signed by himself, there is no indication a complaint for divorce was pursued. Additionally, the death certificate reported the Veteran as being married. The Board finds this information sufficient to support the appellant's contention that they were not divorced, and the two remained married when the Veteran died in May 2016. The second requirement for status as a surviving spouse is continuous cohabitation. The evidence does not show that the appellant and Veteran continuously cohabitated prior to his death. However, the appellant claims that she had never seen the separation agreement, and it is not valid as her signature is not on the document. Nevertheless, the 2015 separation agreement is probative as to whether the Veteran and the appellant cohabitated prior to his death. A treatment record from 2015 notes the Veteran reported being separated from his spouse. The Veteran was receiving pension benefits as a single veteran, and received a debt waiver grant as he reported being estranged from the appellant. Although the supplied 2015 separation agreement contains only the Veteran's signature, at a minimum, it shows the Veteran's intent to separate from the appellant, and lists in great detail how the separation was to be handled. This is probative evidence against the appellant's contention that she and the Veteran cohabitated continuous from the time of marriage until his death. Therefore, the overwhelming evidence shows that the appellant and the Veteran did not continuously cohabitate since at least March of 2015. It is likely the Veteran and appellant did not continuously cohabitate several years prior to 2015. This is evidenced by the Veteran's supplied separation agreement, and request to remove his spouse from his pension award, as well as the request for waiver of the appellant's debt. The Board has considered whether the exception to the continuous cohabitation requirement has been met. However, there is no evidence that any separation was due to the misconduct of, or procured by, the Veteran without the fault of the surviving spouse, or that they lived apart for purposes of convenience, health, business, etc. 38 C.F.R. § 3.53 (b). Here, the appellant's statements are of limited probative value, given their inconsistencies against the evidence of the record. The appellant's statements as to continuous cohabitation lack credibility and are far outweighed by the evidence suggesting no continuous cohabitation. In other words, the most probative evidence as whether the Veteran and appellant cohabitated from the time of marriage to his death are the Veteran's own reports to VA employees and the contents of the separation agreement. Further, at the Board hearing, the appellant indicated that between she and the Veteran there were children, grandchildren, and great grandchildren who would attest to their continuous cohabitation prior to the Veteran's death. To date, no such statements in support of her contention have been supplied. For the reasons elucidated, the Board finds that the appellant and the Veteran remained married at the time of his death. However, the Board determines that the Veteran and the appellant did not continuously cohabitate at the time of his death and the most probative evidence shows that the exceptions to the continuous cohabitation requirement are not met. Thus, the appellant cannot be recognized as his surviving spouse for purposes of entitlement to VA benefits. See 38 C.F.R. § 3.50. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Skiouris, 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.