Citation Nr: 21071145 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 18-55 015 DATE: November 29, 2021 ORDER Entitlement to recognition as the Veteran's surviving spouse is granted. FINDINGS OF FACT 1. The appellant and the Veteran were married in May 2011. 2. At the time of the marriage, the appellant was unaware that the Veteran was legally married to another woman. 3. With the exception of a few months (due to the Veteran's violence against the appellant), the appellant and the Veteran continuously cohabitated from the date of the marriage until the day of his death. CONCLUSION OF LAW The criteria for recognition of the appellant as the Veteran's surviving spouse have been met. 38 U.S.C. §§ 101, 103, 1102, 1304, 1541; 38 C.F.R. §§ 3.50, 3.53, 3.52, 3.54, 3.205. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from July 1951 to September 1958. He died in July 2013. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2018 decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO). In August 2021, the appellant testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A copy of the transcript has been associated with the Veteran's electronic claims folder. Entitlement to recognition as the Veteran's surviving spouse The appellant contends that she is entitled to recognition as the Veteran's surviving spouse because she married him in May 2011 and did not know that he was legally married to another woman. See Board Hearing Transcript, p. 5. She cohabitated with the Veteran until his death. For the reasons explained below, the Board finds that entitlement to recognition as the Veteran's spouse is warranted. A surviving spouse of a qualifying veteran who died as a result of a service-connected disability is entitled to receive dependency and indemnity compensation. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. In order for the appellant to be recognized as a surviving spouse the evidence must support that the claimant was the veteran's spouse at the time of death and that the claimant lived continuously with the veteran from the date of marriage to the date of the Veteran's death. 38 U.S.C. §§ 101 (3), 5124(c); 38 C.F.R. §§ 3.50 (b), 3.205(a), 3.206. Where an attempted marriage of a claimant to the veteran was invalid by reason of a legal impediment, the marriage will nevertheless be deemed valid if: (a) The marriage occurred 1 year or more before the veteran died or existed for any period of time if a child was born of the purported marriage or was born to them before such marriage (see §3.54(d)), and (b) The claimant entered into the marriage without knowledge of the impediment, and (c) The claimant cohabited with the veteran continuously from the date of marriage to the date of his or her death as outlined in §3.53, and (d) No claim has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits other than accrued monthly benefits covering a period prior to the veteran's death. 38 C.F.R. § 3.52. Where a surviving spouse has submitted proof of marriage in accordance with paragraph (a) of this section and also meets the requirements of § 3.52, the claimant's signed statement that he or she had no knowledge of an impediment to the marriage to the veteran will be accepted, in the absence of information to the contrary, as proof of that fact. 38 C.F.R. § 3.205 (c). The requirement of continuous cohabitation 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). Fault or the absence of fault is to be determined based on an analysis of conduct at the time of the separation. Gregory v. Brown, 5 Vet. App. 108, 112 (1993). The statement 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 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. 38 C.F.R. § 3.53 (b). Here, an Oklahoma marriage license indicates that the claimant and the Veteran were married in May 2011. However, there is also evidence that the Veteran discovered that his previous marriage to another woman had not been properly dissolved prior to the May 2011 marriage. See April 2013 Veteran's correspondence. As the Veteran was legally married to another woman at the time of his marriage to the appellant, the appellant's marriage to the Veteran is invalid due to this legal impediment. As noted above, the VA will recognize this marriage if certain prerequisites are met. The appellant testified at the Board hearing that she was unaware that the Veteran was legally married to another woman at the time of their May 2011 wedding. See Board Hearing Transcript, p. 5. Following their marriage, the appellant and the Veteran cohabitated continuously until his time of death, except for a few months. See Board Hearing Transcript, p. 6. The claimant testified that the Veteran's posttraumatic stress disorder (PTSD) caused him to have a violent outburst and he threatened her life. Id. She testified that she filed a police report against him and began counseling following this incident. Id. at 9. She testified that for 3-4 months, the Veteran lived with his adult daughter, but returned home after the temporary separation. Id. at 6. There is no evidence that any other person has filed for recognition as the Veteran's legal surviving spouse. Based on the foregoing, the Board finds that there is evidence that the appellant attempted a marriage to the Veteran more than 1 year prior to his death and lived continuously with him from the date of the marriage until the Veteran's death. The Board finds the appellant's Board hearing testimony credible and probative in nature. The Oklahoma marriage license supports her testimony. There is no contrary evidence. Although there was evidence that she and the Veteran did not reside with one another for a few months, it was due to the Veteran's violent outburst. Accordingly, the Board finds that the appellant meets the requirement for a finding of continuous cohabitation. As all requirements for recognition as a surviving spouse have been met, the appellant is recognized as the Veteran's surviving spouse for the purpose of VA benefits. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Baskerville 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.