Litigation

Where the parties were separated for two years prior to the veteran-husband's death, but no matrimonial litigation or absolute divorce occurred, the surviving spouse may be entitled to the deceased veteran's benefits. Alpough v. Nicholson, 2006-7304, United States Court of Appeals for the Federal Circuit, June 18, 2007.

The husband served in the military from 1954-1956. The couple was married in 1960 and had two children; they separated in 1970. In October 1972, the husband filed a claim for service connection for stomach problems, including stomach cancer. In his claim, he stated he had been separated from the wife because they 'could not get along.' The husband died in December 1972. The wife filed for military benefits as a surviving spouse in February, 1973, but was denied by the VA. The VA concluded that the wife was not a surviving widow because they mutually agreed to live apart and there was no intention of the husband and wife to resume a marital relationship. The wife made repeated attempts to reopen her claim. On Jan. 14, 2003, the Board of Veterans' Appeals issued a decision indicating that the separation between the husband and wife might have been due to the husband's illness rather than incompatibility and that the evidence was sufficient to reopen the wife's claim for military benefits. Nevertheless, it would not award the wife benefits because it appeared that the wife was not without fault in the separation. The wife appealed, and the appellate court reversed. It held, after reviewing the relevant statutes, the wife was a surviving spouse entitled to the husband's benefits. Under 38 U.S.C. '101(3), a person is a surviving spouse if he or she: 1) is of the opposite sex of the veteran; 2) is the spouse of the veteran at the time of the veteran's death; 3) has lived with the veteran continuously from the date of marriage to the date of the veteran's death (the 'continuous cohabitation' requirement); and 4) has not remarried or lived with another person and held himself or herself out publicly as the spouse of that person. An exception to the continuous cohabitation requirement exists, where the separation was due to the misconduct of the veteran without the consent of the surviving spouse. The appellate court held that under the statute, a spouse qualifies as a surviving spouse, even if a separation occurred, where the separation was procured by the veteran, even if there was no misconduct by the veteran. The appellate court further held that a separation by mutual agreement, without an intent to desert, does not break the requirement of continuity of cohabitation.