BVA9505593 DOCKET NO. 93-09 301 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio 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 WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Hilary L. Goodman, Counsel INTRODUCTION The veteran, who had active service from November 1944 to May 1946 and from January 1952 to March 1952, died in May 1991. This appeal arises from an October 1991 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 and the veteran were married in 1943 and, after having eight children, they temporarily separated in 1960. She asserts that the veteran was a womanizer and wife abuser who got drunk almost every night. She further asserts that, while he was working, he was not bringing any money home to take care of his family. She further contends that she decided to no longer take the abuse and, in 1960, the appellant and the children moved out and she went to work. The appellant relates that, while they got back together in 1962, the abusiveness began again and he continued his womanizing; she again left and they remained separated until his death. 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 veteran's 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 Ohio in December 1943. 3. They temporarily separated in 1960 and, after again separating in 1962, did not thereafter live together as husband and wife. 4. The separations of the veteran and the appellant were the result of the veteran's excessive use of alcohol, infidelity, physical abuse and failure to support his spouse and children. 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 relevant facts in this case are not in dispute. No further assistance is warranted. 38 U.S.C.A. § 5107(a). The veteran and the appellant were married in the state of Ohio in December 1943. In an October 1958 application for VA benefits the veteran indicated that he and the appellant were living together. In a July 1969 Declaration of Marital Status, the veteran reported that he and his spouse, the appellant, had not been living together since January 1957 because of incompatibility. The appellant, in a July 1970 apportionment claim, indicated that she and veteran had separated approximately ten years previously because he would not support his spouse and six children. She noted that neither she nor the veteran had filed for divorce. In a March 1977 statement, the veteran indicated that he and the appellant had not lived together for fifteen years. He also stated he had no minor children but that the appellant had a child who was 8 or 9 years old, whose last name was different from that of the veteran, and who had been born after the veteran and the appellant had been separated. In a report of a medical examination following the veteran's March 1977 admission to a VA hospital, a history of ethanol abuse was noted. In a June 1980 Declaration of Marital Status, the veteran reported that he and his spouse were separated, again due to incompatibility. The appellant, in a March 1987 apportionment claim, indicated that she was the veteran's estranged wife. In his certificate of death, his marital status was listed as married and the appellant was reported to be the informant. In her testimony at the June 1992 hearing, the appellant stated that the child born to her in December 1967 could have been the child of either the veteran or another man, as she was cohabiting with both of them at the time. 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). The record shows that the veteran and the appellant were married in 1943. There is nothing in the record to suggest that either the veteran or the appellant ever sought a divorce and it must be concluded that the appellant was the veteran's lawful spouse at the time of his death. However, rather than living continuously together from the date of their marriage to the date of the veteran's death, they were separated for about twenty-nine 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. The Board notes that Gregory was decided after the instant case was certified to the Board. Thus, the regional office did not have the benefit of the guidance of that decision. In the instant case, the appellant has stated that it was the veteran's misconduct, specifically his excessive use of alcohol, infidelity, physical abuse and failure to support his spouse and children, which led to their ultimate separation and that she was not at fault. While the veteran had indicated that the reason for separation was incompatibility, the appellant's mother, in a June 1992 statement, reported that the appellant had a very hard and abusive life with the veteran. It was stated that the appellant put up with the veteran's unfaithfulness and was evicted many times and came to her mother's home for food as the veteran would not come home with his paycheck. The appellant's mother noted that sometimes when the appellant came to the house she had been beaten up by the veteran. In addition to this statement, the medical records refer 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, infidelity, physical abuse and failure to support his spouse and children, resulted in the 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. JAMES R. ANTHONY 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.