Citation Nr: 0938344 Decision Date: 10/08/09 Archive Date: 10/22/09 DOCKET NO. 08-39 833 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to recognition as the surviving spouse of the Veteran. REPRESENTATION Appellant represented by: Stephanie Blei, Esquire ADVOCATE AT HEARING ON APPEAL The appellant's attorney. ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran served on active duty from December 1952 to November 1954. He died in February 2007. The appellant seeks recognition as his surviving spouse This appeal to the Board of Veterans' Appeals (Board) arose from a November 2007 administrative decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Pittsburgh, Pennsylvania, that determined there was no continuous cohabitation with the Veteran until his death. The appellant requested a Travel Board hearing which convened in March 2009 before the undersigned Veterans Law Judge. She was unable to attend due to the severity of her health problems, but her attorney appeared and presented argument in her behalf. See 38 C.F.R. § 20.701 (2009). A transcript of the hearing proceedings is associated with the claims file. The record of the hearing was held open by the undersigned for 30 days for submission of additional evidence. No additional evidence was received. FINDINGS OF FACT 1. The appellant and the Veteran were legally married under the laws of the State of Pennsylvania but were separated at the time of his death. 2. The preponderance of the probative evidence shows the separation was not, by mutual consent, 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. CONCLUSION OF LAW The requirements for recognition as the Veteran's surviving spouse are not met. 38 U.S.C.A. §§ 101(3), 103(c), 5103, 5103A, 5107 (West 2002 and Supp. 2009); 38 C.F.R. §§ 3.1(j), 3.50, 3.53, 3.159 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126, have been substantially met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the appellant in August 2007 of certain specific information she needed to provide and of VA's duty to assist her. The letter noted an enclosure meant to inform her of the evidence needed to establish her claim, but the Board notes the absence of that enclosure from the letter and the claims file. Thus, the Board is constrained to find VA did not provide appellant a content-compliant notice. See 38 C.F.R. § 3.159(b)(1). Notwithstanding this failure, the Board finds the appellant was not prejudiced to her detriment by this oversight. First, the August 2007 letter did inform the appellant of the core evidence she needed to provide, which were the reasons she and the Veteran were separated and a statement of verification from someone. Second, the statement of the case provided all of the applicable regulatory requirements in addition to the reasons and bases for the denial of the claim. Third, the appellant is represented by an attorney who has not asserted that the appellant was misled by the omissions of the August 2007 letter, or that the appellant was unaware of what was needed to establish her claim. Thus, the Board finds the non-compliant August 2007 letter did not deprive the appellant of a meaningful opportunity to participate in the adjudication of her claim, see Washington v. Nicholson, 21 Vet. App. 191 (2007), and she did in fact meaningfully participate. VA has also fulfilled its duty to assist the appellant in obtaining identified and available evidence needed to substantiate a claim. See 38 C.F.R. § 3.159(c). While the appellant may not have received full notice prior to the initial decision, she nonetheless was afforded a meaningful opportunity to participate in the adjudication of the claim via the presentation pertinent evidence and testimony. In sum, there is no evidence of any VA error in notifying or assisting her that reasonably affects the fairness of this adjudication, and the Board may address the merits of the appeal. The Board has reviewed all the evidence in the Veteran's claims file as well as the appellant's additions. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by an appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Governing Law and Regulation The term "surviving spouse" means a person of the opposite sex (1) whose marriage to the Veteran was valid under the law of the place of residence at the time of the marriage or when the right to benefits accrued; (2) who was the spouse of a veteran at the time of the Veteran's death; (3) who lived with the Veteran continuously from the date of marriage to the date of the Veteran's death; (4) and who, except as provided in 38 C.F.R. § 3.55, has not remarried or has not since the death of the Veteran (and after September 19, 1962) lived with another person of the opposite sex and held herself out openly to the public to be the spouse of such other person. See 38 U.S.C.A. §§ 101(3), 103(c); 38 C.F.R. § 3.50(b). 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. 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). 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). Analysis There is no dispute at to the appellant's and the Veteran's marital status at the time of his death in February 2007. They were legally married in 1957 but had lived separate and apart since 1979. Hence, the issue is whether the separation was due solely to the acts of the Veteran, or was it by mutual consent. The RO determined that prior correspondence from the appellant constituted evidence contrary to her statement of reasons and showed she had clearly conveyed the intent that the only reason she and the Veteran did not divorce was their Catholic faith. In Alpough v. Nicholson, 490 F.3d 1352 (Fed. Cir. 2007), the Federal Circuit examined 38 U.S.C.A. § 101(3) with specific attention paid to the exception to the continuous cohabitation requirement. Alpough examined the exception language: "except where there was a separation which was due to the misconduct of, or procured by, the Veteran without the fault of the spouse." In resolving the question of how to interpret the exception clause, the decision held the verb "procured" referred to "separation," not "misconduct," 490 F.3d at 1356, and that the phrase "procured by" was ambiguous as used in the statute. Id. According deference to 38 C.F.R. § 3.53(b), the Federal Circuit concluded that the separation only negated surviving spouse status if the spouse intended to "desert" the Veteran at the time of the separation. 490 F.3d at 1357. The Federal Circuit's decision presented analysis of 38 C.F.R. § 3.53(b) concerning the cohabitation requirement, featuring the observation that, the express terms of the regulation provide that the continuity of cohabitation will not be considered broken if 'the separation was by mutual consent and ... the parties lived apart' for purposes of convenience or for certain other specified reasons or for '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(b). The Federal Circuit explained that "the key is whether the reason for the separation 'did not show an intent on the part of the surviving spouse to desert the Veteran.' Id. The Federal Circuit then went on to discuss the definition of desertion in family law, concluding that "the well- established meaning of 'desert' in family law" is one in which "[a] separation by mutual consent does not constitute desertion." The Federal Circuit decision clarified, however, that it is possible for a separation by mutual consent to coincide with desertion in a manner which would be considered an end to cohabitation for the purposes of this analysis. In this regard, though, the Federal Circuit decision summarized that "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." The appellant's October 2007 letter to VA noted she and the Veteran separated in 1979 due to her serious health problems, with which the Veteran either could not accept or cope. As a result, he reportedly moved out and lived separate and apart from her from that time on. This was the sole reason given by the appellant, and reiterated by her attorney at the hearing. There is no indication or evidence of marital discord. The appellant conveyed no indication whatsoever that the Veteran's moving out was due to anything other than his desire to escape the demands her illness imposed on him. She did not live or cohabit with anyone else during the period up until the Veteran's death. The Board notes from correspondence in the claims file, however, that the Veteran continued to maintain his address of record as the same as the appellant and, as late as 1999, he appointed her his attorney-in-fact in a general power of attorney, which granted her full legal authority to act in his behalf. There is no evidence of misconduct on the appellant's part, but the evidence of record places her intent towards the marriage in question. Notably, in March 2005 the appellant applied for an apportionment of the Veteran's nonservice-connected pension benefits. In a March 2005 letter in support of that application, which the RO received in April 2005, the appellant noted the continuous separation since 1979. She appellant emphasized the fact she had not lived with the Veteran for 25 years. Indeed, she stated that "I have no intention of sharing a residence with him at anytime in the future." (sic) The most striking feature of the letter is that there is no mention of the separation being solely attributable to the Veteran's desires, or even by mutual consent for that matter. That particular facet was not introduced until the appellant filled out a June 2007 VA Form 21-534, which is an application for death benefits. Interestingly, the appellant's and Veteran's daughter added nothing in her September 2007 statement that shed any light. The daughter made no mention of the Veteran having left solely of his own volition in order to escape the stress of the appellant's illness or the responsibility of assisting with her care. Then in her October 2007 statement, the appellant noted that, since she and the Veteran were Catholic, they did not believe in divorce. The RO interpreted her letter to mean that, but for their faith they would have divorced. When all of the competing factors of this case are weighed, the Board is constrained to find a de jure marriage but a de facto divorce. In other words, though legally married by law, the appellant's March 2005 correspondence shows that the marriage did not in fact exist in the appellant's mind. At the hearing, the undersigned fully explained and discussed the impact of the appellant's September and October 2007 letters with her attorney, and noted a further explanation or disavowal of them would help her appeal. That is the reason the undersigned held the record of the hearing open for 30 days to allow the appellant and her daughter an opportunity address what appeared to be her clear intent as communicated in those letters. See Transcript, pp. 8-12. As noted in the Introduction, no further evidence was received. In light of the above, the Board is constrained to find the preponderance of the evidence shows the appellant communicated a definite intent to end the marriage-but for the constraints of her faith. 38 C.F.R. § 3.53. The benefit sought on appeal is denied. In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the claim, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to recognition as the surviving spouse of the Veteran is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs