BVA9502776 DOCKET NO. 93-06 468 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to recognition as the veteran's surviving spouse for VA benefit purposes. ATTORNEY FOR THE BOARD Raymond F. Ferner, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an October 1992 administrative decision of the Department of Veterans Affairs (VA) Regional Office in Houston, Texas (RO), which denied the benefit sought on appeal. The appellant appealed that determination to the BVA, and the case was received at the Board in March 1993. The veteran, who had active service from April 1946 to December 1946, died in November 1980. CONTENTIONS OF APPELLANT ON APPEAL The appellant essentially contends that the RO was incorrect in not granting the benefit sought on appeal. She maintains, in substance, that she and the veteran were still legally married at the time of his death and that there was never a legal document drawn up for a legal separation. She relates that any separation between her and the veteran was due to a family illness which necessitated her presence in Huntsville, Texas, while the veteran remained in Fort Worth, Texas, due to his employment. The appellant acknowledges that she did not live continuously with the veteran from the time of their marriage until the time of his death, but asserts that there is no requirement that a husband and wife live in the same house or the same town to be legally married. Therefore, a favorable determination has been requested. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed all of the evidence of record. Based on a review of the evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the appellant has not submitted a well-grounded claim to establish entitlement to recognition as the veteran's surviving spouse for VA benefit purposes. FINDINGS OF FACT 1. Sufficient relevant evidence necessary for an equitable disposition of the appellant's appeal is contained in the veteran's claims file. 2. The veteran and the appellant were married in November 1948 and were married at the time of the veteran's death in November 1980. 3. The veteran and the appellant separated some time after their marriage in 1948, most likely in 1956, and did not thereafter resume living together. 4. There is no evidence that the separation of the veteran and the appellant was due to the misconduct of, or procured by, the veteran, and was without the fault of the appellant. CONCLUSION OF LAW The appellant has not submitted evidence of a well-grounded claim to establish entitlement to recognition as the veteran's surviving spouse for VA benefit purposes. 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 preliminary question to be answered in this case is whether the appellant has presented a well-grounded claim. In this regard, the appellant has "the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). If the appellant has not submitted evidence of a well-grounded claim, her appeal must fail and be dismissed. See Boeck v. Brown, 6 Vet.App. 14, 17 (1993); Grivois v. Brown, 6 Vet.App. 136, 140 (1994). The Board finds and concludes that the appellant's claim is not well grounded. Accordingly, since the Board does not have jurisdiction over the question of whether or not the benefit sought on appeal is warranted, the appellant's claim is dismissed. 38 U.S.C.A. § 7105(d)(5) (West 1991). The appellant and the veteran were married in November 1946 and were legally married to each other at the time of the veteran's death in November 1980. The record reflects that some time after their marriage in 1948 the appellant and the veteran separated. While the appellant has not specified a date as to when the separation occurred, in a VA Form 21-4138 (Statement in Support of Claim) from the veteran dated in January 1980, he specified that: "I have been separated from my wife since 1956." Also, in a statement from the appellant received in February 1993, which was accepted as her substantive appeal in this case, she acknowledged that: "I did not live contiously [sic] with my husband from the time of our marriage to the time of his death." The Board would also note, with respect to the issue of credibility, the appellant had previously certified by her signature in the application for VA benefits received in June 1992 that she had lived continuously with the veteran from the date of marriage to the date of death. As such, the Board finds as more credible the veteran's statement that he and the appellant separated in 1956. As to the cause of the separation of the appellant and the veteran and whether the separation "was due to the misconduct of, or procured by, the veteran without the fault of the spouse[,]" 38 U.S.C.A. § 101(3) (West 1991), there is no evidence that the separation was due to or procured by the veteran. Indeed, the appellant's statement, and those of the two individuals submitted in support of her claim are to the effect that the separation was mutually agreed to and was due to a need for her presence in another town to tend to a sick relative. The three statements received in September 1992 also relate that the appellant and the veteran remained in contact and communication with her and continued to visit her until his death in 1980. However, in the previously mentioned VA Form 21-4138 the veteran stated in a claim for pension benefits that: "I have absolutely no idea of how much my wife's income is and I have no way of finding out." The veteran's statement is at odds with statements from the appellant and the two individuals, and having previously determined the appellant's credibility with respect to representation she has made in connection with her claim is less than that of the veteran, the Board finds that there is contradictory information of record as to the reason for the separation of the appellant and the veteran. See 38 C.F.R. § 3.53(b) (1993). Indeed, had the appellant and the veteran been in regular contact with each other it would have been a relatively simple matter for the veteran to obtain information from his wife. Simply put, there is no evidence of fault in the separation of the appellant and the veteran on the part of either party to the marriage. The reason for their separation is unclear but in the absence of probative evidence otherwise, it would appear that the parties mutually agreed to separate and live separate lives without benefit of a formal divorce. The Board also finds that the appellant's statement concerning the reason for the separation, that she tended a sick relative from 1956 to 1980, a period of 24 years, to be dubious at best, and contradicted by the statement from the veteran made in January 1980. The Board, therefore, concludes that the appellant and the veteran did not continuously cohabitate from the date of their marriage to the date of death, and the appellant has failed to submit credible and probative evidence that the separation was due to the misconduct of, or procured by, the veteran without the fault of the appellant. As such, the appellant has not submitted evidence of a well-grounded claim to establish entitlement to recognition as the veteran's surviving spouse for VA benefit purposes. ORDER Evidence of a well-grounded claim for recognition of the appellant as the veteran's surviving spouse for VA benefit purposes not having bee n submitted, the appeal is dismissed. WARREN W. RICE, JR. 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.