Citation Nr: 21011614 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 15-34 783 DATE: March 2, 2021 ORDER Entitlement to recognition as a surviving spouse of a deceased veteran for the purpose of receiving Department of Veterans Affairs (VA) improved death pension benefits is denied. FINDINGS OF FACT 1. The appellant did not continually cohabitate with the Veteran from the date of marriage to the date of his death in November 2013. 2. The separation was not due to the misconduct of, or procured by, the Veteran without the fault of the appellant; it was not temporary and ordinarily occurring; and it was not by mutual consent and involved the parties living apart for purpose of convenience, health, business, or any other reason which did not show an intent on part of the appellant to desert the Veteran. CONCLUSION OF LAW There is no legal basis to recognize the appellant as a surviving spouse for the purpose of receiving VA death benefits. 38 U.S.C. §§ 101(3), 103; 38 C.F.R. §§ 3.1(j), 3.5, 3.50, 3.52, 3.53. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from August 1946 to July 1969. Unfortunately, he died in November 2013. The appellant seeks entitlement to death pension benefits. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 administrative decision of the Department of Veterans Affairs (VA) Pension Management Center, in St. Paul, Minnesota. In April 2019, the appellant testified at a Board hearing before the undersigned Veterans Law Judge, and a transcript of the hearing has been associated with the claims file. Entitlement to recognition as a surviving spouse of a deceased veteran for the purpose of receiving VA improved death pension benefits is denied. The appellant seeks entitlement to death pension benefits and requests to be recognized as a surviving spouse of the Veteran, who died in November 2013. She testified at the April 2019 Board hearing that, although her husband had filed a lawsuit for annulment/divorce prior to his death, the case was dismissed. See, e.g, April 2019 Board hearing transcript, p.1, 4-5. In several statements, she claims that the Veteran’s children did not approve of her marriage to the Veteran and fraudulently were involved in those annulment proceedings. See April 2015 notice of disagreement (“My husband was force to sign documents without reading the documents by [his son]. . . . [That son] also forged my husband[’s] signature and mine in several other documents.”) Additionally, with regard to continuous cohabitation, she acknowledged they were apart for a portion of the marriage but essentially argues that the separation was not through any fault of her own. Rather, she alleges it was because “I did not care for him on my own with cancer treatments and all of those other medical problems my husband had, so he was put in Golden Palms by his children with my approval.” April 2019 Board hearing transcript, p.3. She explained that Golden Palms is an assisted living/ nursing home/ therapy center, and that “I was not able to live with my husband . . . but I was constantly there when the children were not around . . . . But they would rotate and take turns to make sure I wouldn’t move in with their father.” Id. at p. 5. A “surviving spouse” is defined by VA at 38 C.F.R. § 3.50 as a person “whose marriage to the veteran meets the requirements of § 3.1(j) and who was the spouse of the veteran at the time of the veteran’s death and: (1) Who lived with the veteran continuously from the date of the veteran’s death except where there was a separation which was due to the misconduct, of procured by, the veteran without the fault of the spouse; and (2) Except as provide in § 3.55, has not remarried.” The requirement that there must be continuous cohabitation from the date of the marriage to the date of the death of the veteran 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). Temporary separations which ordinarily occur, including those caused for the time being through the fault of either party, will not break continuity of cohabitation. Id. The statement of the surviving spouse as to the reason for the separation will be accepted in the absence of contradictory information. 38 C.F.R. § 3.53(b). 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. Id. State laws will not control in determining questions of desertion; however, due weight will be given the findings of fact in court decision made during the life of the veteran on issues subsequentially involved in the application of this section. Id. In this case, the appellant submitted a copy of the certificate of marriage between herself and the deceased Veteran in January 2012 in Cameron County, Texas. However, to be eligible for VA death pension benefits and recognized as a “surviving spouse” under VA regulation, a spouse must have cohabitated with the Veteran continuously from the date of the marriage “except where there was a separation which was due to the misconduct of, or procured by, the veteran without the fault of the spouse.” Thus, the pertinent inquiry in this case is whether there was continuous cohabitation throughout the marriage, which includes a consideration of whether the appellant bears fault for any separation. The Board makes an initial finding that the Veteran and the appellant did not continually live together from the date of their marriage in January 2012 until his death in November 2013. The appellant initially informed VA in her December 2013 application for death benefits that she had lived continuously with the Veteran from the date of marriage to the date of his death. See December 2013 VA Form 21-534EZ. However, she later admitted in her April 2019 Board hearing testimony, as well as other subsequent written statements, that she and Veteran had, in fact, lived apart for a portion of the marriage. See April 2015 notice of disagreement (“nor did we ever live apart until he was getting cancer treatments. I as his wife... chose what was best for my husband’s care during his cancer treatments. We . . . made a decision on a pri[vate] facility ‘Golden Palms,’ so he can get the best care possible in which I was not allow to stay with my husband overnight due to orders of his children.”); April 2019 Board hearing transcript (alleging “because since my husband was going through cancer treatments, he was put in Golden Palms . . . the age difference did not allow me to live with my husband at Golden Palms. . . . I did not care for him on my own with cancer treatments and all of those other medical problems my husband had, so he was put in Golden Palms by his children with my approval. . . Well, under the circumstances, again, our age difference and my husband’s health, I was not allowed to live under the roof of Golden Palms, but we were still married (inaudible).”). Although there is some dispute as to why the appellant and the Veteran were not living together, which will be addressed below, the appellant clarified that they had indeed lived apart for portion of their marriage. The Board therefore finds that there was a separation that occurred during the marriage. Turning then to the crux of the matter, the Board must examine the nature of the separation. This includes whether the separation was temporary and ordinarily occurring in nature, whether it was by mutual consent for a reason other than desertion, or whether it “was due to the misconduct of, or procured by, the veteran without the fault of the spouse” as set forth by VA regulation. After carefully reviewing the claims file, the Board finds that the appellant bears fault for the separation that occurred during the marriage, at least from July 2012 forward. In this case, the Veteran, prior to his death in November 2013, filed for an annulment/divorce from the appellant in July 2012. Crucially, he expressly claimed that the appellant used fraud/duress to induce their marriage and further asserted that they had been separated upon his discovery of the appellant’s actions. His notarized statement alleges, “Respondent [the appellant] used fraud, and duress to induce me to marry and I have not voluntarily lived with the Respondent since learning of the fraud or being released from the duress or force.” July 2012 Original Petition for Annulment of Marriage and/or Alternatively Divorce. The pleadings explained: Petitioner has had, and currently suffers a severe form of cancer and was taking strong pain medication prior to and during the early part of the marriage. Respondent represented to Petitioner that she was a certified nurse and could offer 24/7 care to the Petitioner if he relocated into her home and paid her a salary equal to what Respondent was earning at her then employer, Dillard’s Department Store. Petitioner moved into Respondent’s home and was provided a separate bedroom on or about December 30, 2011. Respondent entered into an employment contract on or about January 12, 2012 requiring certified nurse provider care for the Petitioner. Shortly after moving into Respondent’s residence, Respondent convinced Petitioner to marry Respondent and Respondent thereafter began transferring and converting property and monies to Respondent’s name and possession. Respondent had divorced [her previous ex-husband] on December 15, 2011. . . . The marriage between Petitioner and Respondent has never been consummated since their marriage on January 20, 2012. Petitioner and Respondent have not been together as husband and wife. Petitioner and Respondent kept separate sleeping arrangements. Respondent sole purpose for the marriage to Petitioner was to intentionally and knowingly take advantage of his age, medical and emotional conditions, monies and properties. Shortly after the marriage, Respondent drove Petitioner to San Antonio and withdrew large sums of money from his bank accounts. Some checks sent to Petitioner have been signed into Respondent’s sole bank accounts. Respondent was added to Petitioner’s will. Respondent was given a Power of Attorney over Petitioner’s finances and made the beneficiary of several accounts and insurance policies. Additionally, Petitioner was required to still pay the nurse provider fee pursuant to the employment contract but was also required to pay $650.00 for the mortgage of the house as well as other expenses. Respondent had Petitioner purchase thousands of dollars of appliances on Petitioner’s credit cards. Petitioner is still determining the extent of property that Respondent had converted or transferred over to her name. Id. Indeed, according to a May 2016 report of contact with Treasure Hills Terrace Townhomes, which presumably was his residence prior to moving to Golden Palms, it appears the appellant lived with the Veteran for period of time in a caretaker-patient relationship. The representative for the property stated “Veteran lived with caretaker. Veteran and sons were in contract. Sons paid expenses. A ‘[M]aria’ was retained as a caregiver to assist Veteran.” According to an April 2012 private psychiatric examination, several months after his marriage, the Board notes that the Veteran states, “Now I’m up against bladder cancer. I moved down here from San Antonio about 2 years ago. I was supposed to start t[reatment] yesterday for the cancer but the [doctor] wanted all my [history] from San Antonio first. I have 6 sons & 1 daughter.” He references his ex-wife, deceased more than twelve years ago, but does not mention whether he has a current wife. Rather, the Veteran refers to living with his “caretaker.” See April 2012 private treatment report (noting the Veteran “tells me his caretaker leaves her tv on all night. [C]aretaker tells him that she has the tv on too loud so he’s asked her to turn down volume.”) (emphasis added). The appellant’s statements as to the reason for the separation, i.e. that she only lived apart from him because he entered a facility so that he could get appropriate cancer treatment, are found to lack credibility and are therefore entitled to no probative value. First, as mentioned briefly above, the appellant misrepresented her living arrangements with the Veteran throughout the marriage to VA on her December 2013 application for benefits. It was only after VA received a copy of the Veteran’s July 2012 Original Petition for Annulment of Marriage and/or Alternatively Divorce and denied her claim that she admitted that they did, in fact, live apart for a period of time after the marriage. See, e.g., April 2015 notice of disagreement. Additionally, she also indicated in her April 2015 notice of disagreement that she felt that “my husband and I had a great marriage. I have attached the fil[e] from the court house called ‘Dismissed by Plaintiff or Non Suit,” insinuating that it was the decision of the Veteran to call off the annulment/divorce proceedings. (Emphasis added). However, according to the court case summary printout, the motion to dismiss was filed in November 2013, after the Veteran’s death, by the appellant as Respondent in the judicial matter—the Veteran did not file for any motion to dismiss during his lifetime to stop the annulment/divorce proceedings. To the contrary, the judicial proceedings reflect his intent to continue with the annulment/divorce. Looking at the annulment/divorce proceedings prior the Veteran’s death, the Board finds it significant that the Veteran had instead filed a Motion for Summary Judgement or Alternatively, Motion to Enforce Settlement Agreement for Breach of Contract. That motion was filed in July 2013 and argued by the parties in October 2013, just a month prior to his death. Therefore, any insinuation that the Veteran intended to end the annulment by a dismissal or non-suit is not supported by the family court record of proceedings. Further, the appellant’s legal disputes continued beyond the dismissal of the case in family court into probate court. In fact, the appellant’s private attorney wrote a letter in December 2013 to the Veteran’s private attorney, explaining that “the family court has lost jurisdiction and that this matter needs to go to probate court. We will deal with any separate and community property issues at that point.” See December 2013 letter from G.R., attorney for appellant (responding to accusations that the appellant made threats at the funeral home and attempted to go to Golden Palms to remove property from the premises). In probate court, the Board also notes that the appellant filed an Opposition to the Probate of Will and to Issuance of Letter of Testamentary. See November 9, 2015, Opposition (wherein the appellant contests a June 2013 will made after the Veteran filed for annulment/divorce in favor of a will he previously executed in February 2012 shortly after their marriage). In April 2016, the appellant admitted, “My case is in litigation with my husband’s seven children and I. Once there is a ruling of this matter, I will send you a court photo copy of all documents.” The appellant adamantly disputes the validity of the Veteran’s annulment/divorce filings and states that she did not abide by the temporary restraining orders: The information your office received are from documents that any person can go file in a court room. If every[one] think that documents were turn true I would be serving prison time, especially that I was at that time a ... (40) year old women married to an ... (87) year old man. I always had to defend myself from my husband’s first wife’s children. My husband always had to give me cash money for my attorneys to defend myself so his children would not fin[d] out. No court will pro-long this kind of accusation pro-long so long. During all this fa[lse] accusations, [the Veteran’s oldest son] ... found out that my husband and I never went our separate ways nor did we obey the rest[aining] orders their children put towards us. See April 2015 notice of disagreement. She instead claims that the Veteran’s children did not approve of her marriage to the Veteran and fraudulently were involved in the annulment proceedings. See April 2015 notice of disagreement (“My husband was force to sign documents without reading the documents by [his son]. . . . [That son] also forged my husband[’s] signature and mine in several other documents.”). Further, in her substantive appeal, she argued: As I mention[ed] before, information you receive[d] before in which one or more of my husband[‘s] son(s) submitted you called "Evidence”. . . . As you know paperwork can be su[b]mitted in court, and you also know and see from the “evidence” I [] submitted before shows that everything was dropped. My husband[‘s] son(s) needed paper trail against me for the future law suit[], in which it is in process at this point. . . . My husband was not in good health, so he did not file for any Annulment of Marriage and/or Alternatively Divorce. His sons were doing all the work and the attorney and his sons hired. I still know and have evidence that his sons were forcing and/or forging my husband signature. There are only two people that know that my husband and I were seeing each other and sleeping together was my self and my husband, in which he is not here to confirm. See August 2015 VA Form 9. However, the appellant’s statements are contradicted by other evidence in the record, including, in particular, her own statements made in a June 2013 “Rule 11 Agreement” prior to the Veteran’s death, agreeing to terms of a divorce. Rule 11 of the Texas Rules of Civil Procedure governs settlement agreements and their revocability for all types of civil litigation, including family law. The Rule states “no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.” Tex. Rules Civ. Pro. 11. According to the Rule 11 Agreement taken in June 2013 during the oral deposition of the appellant by a certified shorthand reporter, the following agreement was reached and put on the record: We have entered into a Rule 11 Agreement, which we are going to put into the record right now so that we can finish off and consummate the divorce. The terms of the divorce will be that [appellant] will return by deed both Bastrop properties that were deeded over to her. . . . That she will disclaim as of today, all VA or military benefits including any survivor benefits, annuities or anything that would come from the VA or military benefits . . . . Basically, you're not making any claim for any benefits . . . And you disclaim all of those [She answers “Correct”]. . . . That you will pay the amount of $3,400 as reimbursement back to [son] for purchase of appliances. . . . We are granting a divorce which we will be drafting and putting together, and you’re cooperative in signing that divorce; is that right? [She answers “Right”] . . . . [T]he parties will cooperate in the finalizing a final divorce decree which we would like to have done probably by the end of the month. June 2013 Rule 11 Agreement. Despite terms of the agreement, the Veteran’s law firm explained, “Unfortunately, [the Veteran] passed away before these matters could be finalized.” See May 2016 communication from Veteran’s prior law firm (enclosing the Agreed Temporary Orders dated September 2012 and Rule 11 Agreement dated June 2013). In this case, the Board notes that the Director of Housing at Golden Palms Retirement & Healthcare Center confirmed, “Our records indicate that [Veteran] had a single occupancy Service Agreement with Golden Palms.” Regardless of whether his initial move to that facility was for the purpose of medical care and cancer treatment, the weight of the probative evidence shows that the enduring separation was neither temporary and ordinarily occurring nor by a mutual consent to live apart while intending to stay married. Rather, as the Veteran set forth in his July 2012 petition for annulment/divorce, the separation was procured by him based on fault on part of the appellant. See also September 2012 Temporary Orders (“Requiring each Party not to enter into the residence of the other Party.”). To reiterate, as the above evidence corroborates a separation from July 2012 forward based upon the allegations contained Veteran’s petition for annulment/divorce, it cannot be said that the separation was either temporary and ordinarily occurring or by mutual consent and involved an agreement to live apart for purpose of convenience, health, business, or any other reason which did not show an intent other than desertion. In so finding, the Board acknowledges that 38 C.F.R. § 3.53(b) provides that the statement of the surviving spouse as to the reason for the separation will be accepted in the absence of contradictory information. However, in this case, probative evidence directly contradicts the appellant’s claim that her separation from the Veteran during their marriage was through no fault of her own. This evidence includes, but is not limited to, the Veteran’s July 2012 filing for annulment/divorce wherein he expressly stated that he had “not voluntarily lived with the Respondent since learning of the fraud or being released from the duress or force,” the resulting September 2012 Temporary Orders issued by the family court in Cameron County Texas “[r]equiring each Party not to enter into the residence of the other Party,” and the appellant’s own deposition statements made on the record in a June 2013 Rule 11 Agreement detailing the agreed-upon terms for divorce months before his death. The statements of the Veteran made prior to his death, as evidenced in the family court proceedings, are found to be of high evidentiary probative value because they are supported by independent court records, statements from his lawyers, and are consistent with the Rule 11 Agreement documenting the appellant’s and the Veteran’s agreed-upon terms for divorce. Even recognizing that the annulment/divorce proceedings were not finalized at the time of his death, the Board places high probative value on the notarized statements made by the Veteran in his July 2012 Original Petition for Annulment of Marriage and/or Alternatively Divorce that accused the appellant of fraud and duress. These pleadings, and the summary of court events that follow, constitute probative evidence of the appellant’s role in their separation from at as early as July 2012 and onward. These statements also show that the separation was neither temporary and ordinarily occurring or based upon mutual consent and for a purpose like convenience, health, business, or another reason other than desertion. The appellant’s statements regarding continuity of cohabitation, on the other hand, are internally inconsistent and are contradicted by other evidence in the record. The Board also notes that, in May 2016, in accordance with its duty to assist, VA asked the appellant to submit additional court records and litigation documentation in support of her claim, information regarding where she and the Veteran lived during the marriage and the circumstances of the separation, and evidence supporting her accusations that the Veteran’s children were using force and/or forging the Veteran’s documents. In this regard, it is well established that the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). The appellant stated that she had evidence in her possession that would show that the Veteran’s children were controlling the annulment/divorce proceedings and that she would provide VA with copies of the probate court proceedings, but she has failed to submit this information. In conclusion, the Board finds the appellant’s statements regarding continuity of cohabitation to lack credibility and probative value. As the preponderance of the evidence establishes that there was a separation caused by fault on part of the appellant from at least July 2012 onward, the Board concludes that the requirement of continuous cohabitation from the date of the marriage until the Veteran’s death has not been met. Accordingly, she is not entitled to recognition as a surviving spouse for purpose of receiving VA death benefits. The appeal is denied. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Gielow, 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.