Citation Nr: A25035486 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 231120-394566 DATE: April 17, 2025 ORDER Recognition of the appellant as the surviving spouse of the Veteran for dependency and indemnity compensation (DIC), survivors' pension, and accrued benefits is denied. FINDING OF FACT The evidence indicates that the Veteran and the appellant were married but had not continuously cohabitated prior to his death, and the separation has not been shown to be due to the misconduct of, or procured by, the Veteran without the fault of the appellant. CONCLUSION OF LAW The criteria for recognition as the surviving spouse of the Veteran for DIC, survivors pension, and accrued benefits have not been met. 38 U.S.C. §§ 101, 103, 5107; 38 C.F.R. §§ 3.1(j), 3.50, 3.52, 3.53, 3.54. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1965 to August 1967. He died in October 2020. The appellant was the Veteran's wife. The matter is on appeal under the Appeals Modernization Act (AMA) from a decision issued in July 2023. In the November 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the appellant elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the July 2023 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the appellant would like VA to consider any evidence that was submitted that the Board could not consider, the appellant may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. When a veteran dies, his or her surviving spouse may be eligible for VA death benefits, to include DIC benefits, death compensation, and death pension. See 38 U.S.C. §§ 1102, 1121, 1141, 1304, 1310, 1541; 38 C.F.R. § 3.50(a). For a person to establish recognition as a surviving spouse of a veteran, there must first be evidence of a valid marriage to the veteran under the law of the place where the appellant and Veteran resided at the time of marriage, or the law of the place where they resided when the right to benefits accrued. 38 U.S.C. § 103(c); 38 C.F.R. § 3.1(j); Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). One claiming to be the spouse of a veteran has the burden to come forward with a preponderance of evidence of a valid marriage under the laws of the appropriate jurisdiction. See id. In addition, the person claiming status as the surviving spouse is defined as a person who (1) was the lawful spouse of a veteran at the time of the veteran's death, and (2) 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 fault of the spouse, and (3) who has not remarried. 38 U.S.C. § 101(3); 38 C.F.R. §§ 3.1(j), 3.50(b)(1); Gregory v. Brown, 5 Vet. App. 108 (1993). Further, the person must not have lived with another person and held themselves out openly to the public to be the spouse of such other person. 38 C.F.R. § 3.50(b)(2). 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). In this regard, temporary separations which ordinarily occur, including those caused for the time being through fault of either party, will not break the continuity of the cohabitation. 38 C.F.R. § 3.53(a). 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). The statement of the surviving spouse as to the reason for the separation will be accepted in the absence of contradictory information. Id. In Gregory v. Brown, 5 Vet. App. 108, 112 (1993), the U.S. Court of Appeals for Veterans Claims (Court) identified a two-part test to determine whether a spouse can be deemed to have continuously cohabited with a veteran even if a separation had occurred. First, the spouse must be free of fault in the initial separation. Second, the separation must have been procured by the veteran or due to his misconduct, with the fault determination based on an analysis of the conduct at the time of separation. Id. The mere acts of seeking divorce and failing to reconcile are not relevant to the question of fault at the time of separation, particularly of the spouse has been physically and emotionally abused. Id. The fact that the appellant was married to the Veteran is not in dispute. See marriage certificate received in January 2023. The appellant also does not dispute that she and the Veteran were separated and did not live together for many years prior to his death. The appellant contends that she and the Veteran, who were married, remained friends during their separation until his death. She indicated that they supported each other financially and were talking about getting back together but his deteriorating health would not allow it. They lived in different states, but never filed for divorce. A May 2023 lay statement submitted by a third party whose name is not decipherable, stated that they witnessed the Veteran being the head of household and financially took care of the appellant. Since his passing, the appellant struggled with paying her bills and needed all the help that could be afforded to her. The claims file also contains a March 2004 claim submitted by the Veteran. In the claim, the Veteran stated that he was married to the appellant but was not living with her. He did not know the appellant's address. He indicated that they were separated, because the appellant would not move with the Veteran, and that they lost contact. He also indicated that he did not contribute monthly to the appellant's support. A June 2004 private treatment record noted that the Veteran's primary next of kin was another family member, and his marital status was listed as unknown. In February 2000 private treatment records, the Veteran indicated he was separated, and he listed another friend as his local contact. The Veteran's death certificate lists the Veteran as being divorced at the time of his death. A divorce from the Veteran would not qualify the appellant for surviving spouse status, as she would not be the spouse of the Veteran at the time of his death. 38 U.S.C. § 101(3); 38 C.F.R. § 3.50(b). However, there is no divorce decree of record, and the appellant indicates that she and the Veteran were still married. As such, there is no basis to find that the Veteran and the appellant had divorced prior to the Veteran's death. Following the Veteran's death, an application for burial benefits was submitted by the Veteran's sister, with receipts showing she had paid for his funeral expenses. In a February 2021 VA 21-534EZ, Application for DIC, Survivor's Pension, and/or Accrued Benefits, the appellant stated she was married to the Veteran and lived continuously with him from the date of marriage to his death. In a January 2023 VA 21-534EZ, the appellant stated she was married to the Veteran and did not live continuously with him from the date of marriage to his death, and that the cause of separation was irreconcilable differences. After a careful review of the evidence of record, the Board finds that there was not continuous cohabitation by the appellant and the Veteran, and that an exception to that requirement was not satisfied. While the May 2023 lay statement indicates that the Veteran provided financially for the appellant, this statement, as well as the appellant's statements that she and the Veteran remained friends and financially supported each other is in direct contrast to the other evidence of record, which indicates that the appellant did not move with the Veteran, did not know her address, and that he did not provide her any support. The Veteran also indicated that he lost contact with the appellant, and did not include the appellant as his wife in any paperwork when he was seeking medical treatment. The Veteran was documenting these facts contemporaneously with the time period, which lends great probative value to their veracity, and the Board finds no reason to question the accuracy of such facts. Also, the record reflects that the Veteran's sister paid for the Veteran's funeral expenses. The appellant did not contact VA until after the Veteran's death, when she originally claimed DIC spousal benefits. Given that the Veteran reported that he and the appellant were separated because the appellant did not move with him and it is documented that they did not cohabitate from at least 2004, the Board concludes the evidence does not support the finding that the appellant was free of fault regarding their separation. While the appellant has stated that she and the Veteran separated and were living in different states, she has not provided any reason for the separation. The evidence also does not show that the appellant and the Veteran lived apart for purposes of convenience, health, business, or any other reason which did not show an intent on the part of the spouse to desert the Veteran. 38 C.F.R. § 3.53(b), see Alpough v. Nicholson, 490 F.3d 1352, 1357 (Fed. Cir. 2007). In sum, the most probative evidence establishes that the appellant did not cohabitate continuously with the Veteran until his death and the evidence does not show the separation was due to the misconduct of, or procured by, the Veteran without fault of the surviving spouse. As such, the appellant cannot be recognized as the Veteran's surviving spouse for the purpose of receiving DIC benefits, survivors' pension, and/or accrued benefits. The appeal is denied. The appellant is free to file a supplemental claim with any additional new evidence if she wishes to further pursue her claim. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Yoon, 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.