Citation Nr: 21005647 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 09-44 183 DATE: February 2, 2021 ORDER The appellant, [REDACTED], (B.C.) is not recognized as the Veteran's surviving spouse for the purposes of entitlement to Department of Veterans Affairs (VA) death benefits. FINDINGS OF FACT 1. The Veteran and B.C. married in November 1989. 2. The Veteran died in August 2008. 3. B.C. and the Veteran separated in March 1995 and did not subsequently reconcile. 4. A preponderance of the evidence demonstrates that the reason for the separation did show an intent on the part of B.C. to desert the Veteran. CONCLUSION OF LAW The criteria for the recognition of B.C. as the Veteran’s surviving spouse for the purposes of VA death benefits are not met. 38 U.S.C. §§ 101, 103; 38 C.F.R. §§ 3.1(j), 3.50, 3.52, 3.53; Alpough v. Nicholson 490 F.3d 1352 (Fed. Cir. 2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had honorable active duty service in the United States Army from February 1968 to November 1977. The Veteran served in the Republic of Vietnam. The Veteran died in August 2008. Later that month, B.C. and [REDACTED] (L.A.) filed contesting claims seeking entitlement to VA death benefits. In June 2009, the VA Regional Office (RO) in Philadelphia, Pennsylvania issued an administrative decision recognizing B.C. as the Veteran’s spouse. In response to the June 2009 decision, L.A. filed a notice of disagreement (NOD) in July 2009. VA issued a statement of the case (SOC) in October 2009 and L.A. perfected her appeal in November 2009. In her November 2009 VA Form 9, L.A. requested a Board hearing. Pursuant to this request, L.A. and her sister, Y.M., testified at a Board hearing before the undersigned in April 2011. A transcript of the hearing is of record. Thereafter, in March 2012, the Board remanded to case for the Agency of Original Jurisdiction (AOJ) to properly follow contested claims procedures. Following this development, the case returned to the Board and, in May 2013, the Board found L.A. to be the Veteran’s surviving spouse for VA death benefits purposes. Subsequently, B.C. appealed the May 2013 Board decision to the Court of Appeals for Veterans Claims (Court). In July 2019, the Court issued a Memorandum Decision vacating the May 2013 Board decision and remanding the case for further proceedings. The case is once again before the Board for appellate review. As indicated in the Order on the title page, B.C. has been identified as the appellant in the instant decision, not L.A. Surviving Spouse As an initial matter, the Board finds that the special procedural requirements for simultaneously contested claims were followed in the instant case. See 38 C.F.R. §§ 19.100 – 19.102. Specifically, the AOJ provided both B.C. and L.A. with appropriate notices and determinations related to the contested claim, and advised both parties of applicable law and regulations. With regard to the development of the claim, all known and available records relevant to the appeal have been obtained and associated with the claims file. Notably, neither B.C. nor L.A. has contended otherwise. Additionally, VA afforded both parties the opportunity to meaningfully participate in the adjudication of the appeal. See Washington v. Nicholson, 21 Vet. App. 191 (2007). Thus, the Board concludes that neither B.C. nor L.A. is prejudiced by a decision on the merits of the claim at this time. Turning to the merits of the appeal, the Board first notes that this case has a long and complex history, stemming from claims by both L.A. and B.C. initially filed in August 2008. Although both parties face barriers to be recognized as the Veteran’s surviving spouse, the Board ultimately finds that the law and facts of the case fall in L.A.’s favor. Accordingly, the Board concludes that B.C. is not entitled to recognition as the Veteran’s surviving spouse for VA death benefits purposes. Status as a surviving spouse is a threshold question in VA death benefits cases. For VA purposes, a “surviving spouse” is 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; and (3) since the veteran’s death, has not remarried or lived with another person and held himself or herself out publicly as the spouse of that other person. See 38 U.S.C. § 101(3); 38 C.F.R. § 3.50(b). There is an exception to the requirement of a valid marriage for the purposes of determining a surviving spouse. Specifically, where an attempted marriage of a claimant to a veteran was invalid by reason of a legal impediment, VA will nevertheless deem the marriage valid if: (1) the marriage occurred one 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; (2) the claimant entered into the marriage without knowledge of the impediment; (3) the claimant cohabited with the veteran continuously from the date of marriage to the date of his or her death; and (4) 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. There are, however, two exceptions to the continuous cohabitation requirement. 38 C.F.R. § 3.53. Specifically, VA will consider the requirement of continuous cohabitation from the date of marriage to the date of death of the veteran to be satisfied, or unbroken, if the evidence shows that: (1) any separation was due to the misconduct of, or procured by, the veteran without the fault of the surviving spouse; or (2) the separation was by mutual consent and that the parties lived apart for the 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. 38 C.F.R. § 3.53. Under 38 C.F.R. § 3.53(b), 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). A claimant, therefore, could qualify as a surviving spouse if the separation was procured by the veteran—even if there was no misconduct by the veteran. Alpough, 490 F.3d at 1358. “[A]ny time the mutuality of consent was the result of an intent to desert by the spouse (i.e., the spouse induced the separation by misconduct or by communicating a definite intent to end the marriage) there would be a separation by mutual consent but also an intent to desert.” Alpough, 490 F.3d at 1357 (emphasis added). In the instant case, VA received materials from B.C. in August 2008 pertaining to her marriage to the Veteran. Specifically, B.C. submitted a September 1989 application for a license to marry. On this application, the Veteran indicated that he was married once previously, and that that marriage ended in August 1974 via divorce. B.C. indicated that she had never previously been married. B.C. also filed a copy of the marriage certificate indicating that she married the Veteran in November 1989 in Philadelphia, Pennsylvania. Thus, it appears that B.C. and the Veteran were lawfully married in November 1989 pursuant to the laws of the Commonwealth of Pennsylvania. The record also indicates that B.C. completed a complaint for a divorce from the Veteran in May 1995 which was later filed in the Pennsylvania Court of Common Pleas in Philadelphia. However, the record does not contain a copy of a final divorce decree regarding the termination of B.C. and the Veteran’s marriage. Accordingly, the Board concludes that B.C. remained the Veteran’s spouse despite the filing of the May 1995 complaint. The record also includes a certificate of marriage between the Veteran and L.A., stating that they were married in Philadelphia, Pennsylvania in January 2003. However, as the record indicates that the Veteran was still legally married to B.C, the Veteran’s purported marriage to L.A. in January 2003 was not valid in the Commonwealth of Pennsylvania. See, e.g., 19 Pa.C.S. § 4301 (2003) (providing that bigamy is prohibited in Pennsylvania). Despite this legal impediment to L.A. and the Veteran’s marriage, the record is clear that: (1) L.A. did not know that the Veteran was still legally married to B.C. when she entered into the marriage in January 2003, and (2) L.A. lived continuously with the Veteran from January 2003 until his death in August 2008. See, e.g., Board Hearing Tr. at 3-4, 7. Thus, despite the legal impediment to their marriage, L.A.’s marriage to the Veteran may be deemed valid pursuant to 38 C.F.R. § 3.52 if B.C. cannot be considered “a legal surviving spouse who has been found entitled to gratuitous death benefits[.]” As the Court noted in its July 2019 Memorandum Decision, the record indicates that B.C. and the Veteran separated at some point following their November 1989 marriage. See also January 2013 B.C. Statement. Thus, at first blush, it does not appear that B.C. could be considered a surviving spouse pursuant to 38 C.F.R. § 3.50(b) as the continuous cohabitation requirement was not satisfied. In its July 2019 Memorandum Decision, the Court found that the Board ultimately erred in May 2013 by granting L.A. the status as the surviving spouse due to B.C. being at fault for filing for divorce in 1995. The Court noted that such a conclusion was contrary to the holding in the case of Gregory v. Brown, 5 Vet. App. 108 (1993). In vacating the May 2013 Board decision and remanding the case, the Court directed the Board to make specific findings about the circumstances of B.C. and the Veteran’s separation, to include when and why the separation occurred. Additionally, the Court specified that the Board should take due regard of 38 C.F.R. § 3.53(b)’s command to accept B.C.’s statement as to the reason for the separation in the absence of contradictory information. The Board first finds that B.C. and the Veteran separated in March 1995. In reaching this conclusion, the Board acknowledges that, on her August 2008 claim form, B.C. stated that she and the Veteran had been separated since 2001. However, there is additional evidence of record placing the separation in March 1995. Specifically, a June 2007 VA treatment record indicated that the Veteran was currently married to a party by the name of R.M. and that they had been married since August 1999. This information was repeated in VA treatment records from January 2004, April 2003, and March 2000. Relatedly, a February 1998 VA primary care walk-in note stated that the Veteran was, at that time, on his fourth marriage and had two children. Despite this reporting, there is no evidence in the claims file demonstrating that the Veteran married another individual after his marriage to B.C. up until his January 2003 marriage to L.A. A March 2001 letter from a party identified as R.M.J.S. was associated with the Veteran’s claims file in April 2001. In this letter, R.M.J.S. stated that she had been in a relationship with the Veteran and that he had moved into her apartment in Philadelphia, Pennsylvania in May 2000. She then stated that she moved out of the apartment in August 2000 and went to Georgia, only to return to Philadelphia in October 2000. Lastly, R.M.J.S. stated that the Veteran attempted to reconcile, but she was not receptive and, as such, they were no longer in a relationship. In April 2001, VA also received a VA Form 21-0517, Improved Pension Eligibility Verification Report, completed by the Veteran. On this form, the Veteran indicated he was currently married and living with his spouse. However, he did not provide his spouse’s name. The Veteran provided similar remarks in a VA Form 21-0516-1 received by VA in April 2000. Prior to VA receiving this form in April 2000, the Veteran submitted a statement with VA in December 1998. In this statement the Veteran said that although he was “technically married,” his wife and child did not live with him. Additionally, he emphasized that he was a “single veteran for all practical purposes.” In this statement, the Veteran did not identify who his spouse was by name. In October 1997, the Veteran submitted a formal application for VA compensation or pension. On this form, he stated that his marriage to B.C. ended in 1995 and that he was currently married to another person identified as Z.A. The Veteran listed a day in March 1995 as the date of marriage between himself and Z.A. But, a copy of a marriage certificate—or any other appropriate proof of marriage—between the Veteran and Z.A. was not submitted. Consistent with the Veteran’s October 1997 claim form, B.C. listed a day in March 1995 as the day of separation between herself and the Veteran in her May 1995 divorce complaint. From this evidence of record, the Board concludes that B.C. and the Veteran separated in March 1995 as both parties identified this month and year as when the separation occurred. Additionally, it appears that the Veteran became involved in relationships with others following the March 1995 separation as the evidence of record does not contain any documentation of a reconciliation between himself and B.C. following March 1995. Indeed, the Veteran even indicated in December 1998 that, while he was technically married, he did not live with his spouse and that he was, for practical purposes, a single person. Consistent with documentation of the Veteran’s relationships since March 1995, B.C. did not discuss reconciliation with the Veteran in statements from September 2015, June 2015, January 2013, May 2009, and August 2008. Moving forward from the March 1995 date of separation—and pursuant to the Court’s July 2019 Memorandum Decision—the Board finds that there was separation by mutual consent but with an intent to desert by the appellant. In reaching this determination, the Board acknowledges 38 C.F.R. § 3.53(b)’s mandate to accept B.C.’s statements describing the reason for the separation, absent contradictory information. In this regard, the Board first notes that, in the May 1995 divorce complaint, B.C. averred that she and the Veteran separated because the Veteran committed adultery. Comparatively, on her August 2008 claim form, B.C. stated that a “religion change” was the reason for separation. However, she did not provide any additional context regarding religious differences. In July 2015, B.C. submitted a statement which provided more context to the reasons for separation stated in May 1995 and August 1998. Firstly, B.C. indicated that her marriage to the Veteran was not perfect. She then stated that it was her belief that the Veteran changed his religion to one that justified his promiscuity. B.C. stated that this behavior was the reason she had filed for divorce. Lastly, B.C. indicated that the Veteran’s infidelity was a problem long before she was in his life and that his infidelity remained a constant one throughout their marriage. Lastly, in July 2015, VA received another statement from B.C.—dated from January 2013—that encapsulated a similar theme. In this January 2013 statement, B.C. contended that the Veteran removed himself from the marital home and changed his name, which made it difficult for child support authorities to locate him. From these statements by B.C., the Board concludes that the parties mutually agreed to separate due to religious differences and the Veteran’s promiscuity. This is precisely B.C.’s explanation for the separation. It appears that both parties wished to separate for these reasons. Thus, the Board accepts B.C.’s explanation for the separation. See 38 C.F.R. § 3.53(b). This mutuality of consent was the result of an intent to desert by the appellant, as the filing of the divorce complaint indicated a definite intent to end the marriage. See 38 C.F.R. § 3.53(b); Alpough, 490 F.3d at 1357. In an October 1997 VA mental hygiene clinic intake evaluation, the Veteran reported that he separated from his third spouse—purportedly B.C.—because she was too young and because they had religious differences. The assessment did not elaborate further whether B.C. deserted the Veteran or if it was his decision to separate from B.C. Next, during a December 1998 VA posttraumatic stress disorder (PTSD) examination, the Veteran reported that his wife asked him to leave their home due to escalating strife. The Veteran later stated that he currently lived in an apartment with his girlfriend. In stating that his wife had asked him to leave, the Veteran did not identify B.C. as his spouse and, in light of the Veteran’s relationship history outlined previously, the Board cannot conclude that B.C. was necessarily the individual whom the Veteran was referring to during the examination. As there was mutual consent for separation with definite intent of the appellant to end the marriage, the continuous cohabitation requirement is not satisfied for the purpose of B.C.’s claim to be recognized as the Veteran’s surviving spouse under 38 C.F.R. § 3.50. See 38 C.F.R. § 3.53. Consequently, the Board next concludes that it may deem the Veteran’s marriage to L.A. valid pursuant to 38 C.F.R. § 3.52. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.S. Pettine, 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.