Citation Nr: 21026126 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 17-12 521 DATE: April 29, 2021 ORDER Recognition of the appellant as the Veteran’s surviving spouse for the purpose of establishing basic eligibility for Department of Veterans Affairs (VA) death benefits is granted. FINDINGS OF FACT 1. The appellant and the Veteran were married in April 1990; they never divorced. 2. The appellant’s separation from the Veteran was due to the misconduct of the Veteran without any fault of the appellant. 3. The Veteran died in March 2013. CONCLUSION OF LAW The criteria for recognition of the appellant as the Veteran’s surviving spouse for the purpose of establishing basic eligibility for VA death benefits have been met. 38 U.S.C. §§ 101(3), 5107; 38 C.F.R. §§ 3.1, 3.50, 3.53. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from October 1980 to September 1988, and in the United States Army from November 1989 to November 1993. He also had service in the Army National Guard. His decorations included the Army Service Ribbon, the National Defense Service Medal, and the Combat Action Ribbon. Unfortunately, he died in March 2013. The appellant seeks to establish status as his surviving spouse for the purpose of establishing basic eligibility for VA death benefits. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2016 determination issued by the VA Pension Management Center (PMC) in Milwaukee, Wisconsin. In November 2020, the appellant testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. Recognition of the appellant as the Veteran’s surviving spouse for the purpose of establishing basic eligibility for VA death benefits is granted. The appellant seeks recognition as the Veteran’s surviving spouse for the purpose of establishing basic eligibility for VA death benefits. A “surviving spouse” is defined as a person who was the spouse of a 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, and who has not remarried or has not since the death of the veteran lived with another person and held himself or herself out openly to the public to be the spouse of such other person. 38 U.S.C. § 101(3); 38 C.F.R. § 3.50. The requirement that there must be continuous cohabitation from the date of marriage to the date of 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). The record reflects that the appellant and the Veteran were married in April 1990. See, e.g., April 1990 marriage certificate. The agency of original jurisdiction denied the appellant’s claim on the basis that an April 2013 death certificate noted that the Veteran was divorced at the time of his death. The appellant asserts that she was never divorced from the Veteran, but that they had been separated for years because the Veteran assaulted her approximately two years into their marriage. See, e.g., November 2020 Board hearing transcript. In support of her appeal, the appellant submitted an amended death certificate in April 2021, which noted that the Veteran was married to the appellant at the time of his death. A review of the Veteran’s service personnel records confirms that he assaulted the appellant in June 1992 and that he was moved to the barracks while she stayed in her quarters. See June 1992 military police report; July 1992 DA Form 4833. Based on the foregoing, and resolving reasonable doubt in favor of the appellant, the Board finds that the appellant qualifies as the Veteran’s surviving spouse for the purpose of establishing basic entitlement to VA death benefits. 38 C.F.R. § 3.50. The appellant and the Veteran were married in April 1990. That marriage was valid under 38 C.F.R. § 3.1(j). There is no legal documentation to the effect that the Veteran and the appellant actually divorced, despite the notation on the initial death certificate that the Veteran was divorced at the time of his death. Furthermore, although the appellant admitted that she was separated from the Veteran at the time of his death, she credibly testified that such separation was due to an assault. Based on the available evidence, the Board finds that the appellant’s separation from the Veteran was due to the misconduct of, or procured by, the Veteran without the fault of the appellant. In light of the above, the appellant meets the criteria for a “surviving spouse.” 38 C.F.R. § 3.50(b). Recognition of the appellant as the Veteran’s surviving spouse for the purpose of establishing basic eligibility for VA death benefits is warranted. The appeal is granted. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Ragheb, 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.