BVA9504108 DOCKET NO. 93-04 462 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to recognition as the surviving spouse of the veteran for the purpose of Department of Veterans Affairs benefits. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Hilary L. Goodman, Counsel INTRODUCTION The veteran, who had active service from February 1943 to March 1949, died in May 1991. This appeal arises from a May 1992 administrative decision denying the appellant entitlement to recognition as the veteran's surviving spouse for the purpose of Department of Veterans Affairs (VA) benefits. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that she was the veteran's lawful spouse at the time of his death. She asserts that it was the veteran's misconduct which led to their separation and that she was not at fault as the veteran had mental problems and this resulted in heavy drinking and physical abuse. DECISION OF THE BOARD The Board of Veterans' Appeals (Board), in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence supports the appellant's claim for recognition as the veteran's surviving spouse for the purpose of VA benefits. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's claim has been obtained by the originating agency. 2. The veteran and the appellant were married in the state of Florida in July 1950, and not divorced thereafter prior to his death in May 1991. 3. They separated in the early 1970's and did not thereafter live together as husband and wife. 4. The initial separation of the veteran and the appellant was the result of the veteran's excessive use of alcohol. CONCLUSION OF LAW The appellant was the veteran's lawful spouse at the time of his death, and their separation was due to the misconduct of the veteran without the fault of the appellant. 38 U.S.C.A. §§ 101(3), 5107 (West 1991); 38 C.F.R. §§ 3.50, 3.53 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant's claim is well grounded and the record is relatively comprehensive. No further assistance is warranted. 38 U.S.C.A. § 5107(a). The veteran and the appellant were married in the state of Florida in July 1950. In a July 1971 application for VA benefits the veteran indicated that he and the appellant were living together. In a record of the veteran's hospitalization at a VA hospital in July and August 1971, it was noted that the veteran claimed a recent intolerance to ethanol and that, up to several months ago, he drank several six-packs of beer per day. In a May 1980 application for VA benefits, the veteran indicated that he and the appellant had separated five years previously and the reason for their separation was unknown. In a report of a September 1981 VA medical examination, it was noted that the veteran used to drink a quart of whiskey a week. The impression included a history of past ethanol abuse. At the time of a March 1984 VA examination, the veteran reported that his wife had left him and three months later he reported that he and his wife had been separated for eleven years. The appellant, in an October 1985 apportionment claim, indicated that she and veteran had been separated since 1971-1972. In a declaration apparently made in 1987, she reported he had left the home in 1970. On Eligibility Verification Reports completed by the veteran in September 1986, September 1987, November 1988, September 1989, and September 1990, he listed his marital status as married, not living with spouse. In his certificate of death, his marital status was listed as divorced and his daughter was reported to be the informant. The veteran's aunt reported in a January 1992 statement that the veteran had told her as well as other family members on several occasions that he had gotten a divorce. The statement does not indicate the basis for the divorce or any separation. To be entitled to VA death benefits as a surviving spouse of a veteran, the claimant must have been the veteran's spouse at the time of the veteran's death and have lived continuously with the veteran from the date of their marriage to the date of the veteran's death, except where there is a separation due to misconduct of, or procured by, the veteran without the fault of the spouse. 38 U.S.C.A. § 101(3). 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). While the record shows that the veteran and the appellant were married in 1950, some question is raised as to their marital status at the time of the veteran's May 1991 death. Although the veteran's daughter reported that he was divorced and he apparently told other family members, including his aunt, that he was divorced, only nine months before his death he reported to the VA that his marital status was married, not living with spouse. He may have related to others that he was divorced, but there is no objective evidence to support that finding, and, based upon the current record, it appears that the appellant was the veteran's lawful spouse at the time of his death. The record establishes that, rather than living continuously together from the date of their marriage to the date of the veteran's death, they were separated for some twenty years previous to his death. In Gregory v. Brown, 5 Vet.App. 108 (1993), the United States Court of Veterans Appeals determined that an analysis of the conduct of the parties at the time of the initial separation controls the question of fault in causing the separation between the parties. For the purpose of whether there had been continuous cohabitation, the question of whether there was fault on the spouse's part in causing the separation is to be analyzed as of the time of the initial separation, and not thereafter. In the instant case, the appellant has stated that it was the veteran's misconduct which led to their separation and that she was not at fault as the veteran had mental problems which resulted in heavy drinking and physical abuse. Not only is there an absence of contradictory information, but the medical records contain numerous references, including at a time proximate to their separation, to the veteran's problems with alcohol. After carefully reviewing the entire record, the Board concludes that the evidence from the appellant, together with confirmatory evidence from other sources, and in the absence of contrary evidence, establishes that the veteran's misconduct, including the excessive use of alcohol, resulted in the initial separation. Accordingly, under these circumstances, it follows that the appellant meets the criteria to be recognized as the veteran's surviving spouse for purposes of VA benefits. 38 U.S.C.A. § 101(3); 38 C.F.R. § 3.53. ORDER Entitlement to recognition as the surviving spouse of the veteran for the purpose of VA benefits is granted. ROBERT D. PHILIPP Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.