Starting in 2013, a veteran’s widow (Appellant) argued to VA that she qualified for benefits as her husband’s surviving spouse. She provided evidence that she and the veteran never divorced, and she testified to the Board of Veterans’ Appeals (Board) that she and the veteran lived continuously together until the veteran was too ill to stay in their home.

Complicating Appellant’s claim were documents the veteran had submitted to VA in the 1990s about his relationship with Appellant. Those documents reported that the veteran and Appellant were married and living together, married but not living together, and divorced, and not necessarily in that order.

After the VA regional office denied Appellant surviving spouse status, she appealed to the Board. The Board also determined that she was not a surviving spouse. The Board relied on the inconsistent documents from the 1990s to determine that Appellant and her husband had separated, that the separation was not temporary, and that the veteran did not cause the separation without the fault of Appellant.

Relevant VA Law and Policies

To qualify as a surviving spouse, a claimant must show 1) that the claimant and veteran were legally married at the time of the veteran’s death, 2) that they lived together continuously from the date of the marriage to the date of the veteran’s death, and 3) that the claimant never remarried or suggested to the public that the claimant was the spouse of someone other than the veteran.

The rule about continuously living together has an important exception. If the claimant and the veteran lived separately during their marriage, a claimant can still qualify as a surviving spouse if 1) the spouse did not cause the separation and 2) the separation was due to the veteran’s misconduct or procured by the veteran. The U.S. Court of Appeals for the Federal Circuit explained this exception in Alpough v. Nicholson: a claimant can still be a surviving spouse if the couple mutually agreed to separate and the claimant had no intent to desert the veteran.

Finally, when determining if a spouse was at fault for a separation, the focus is on the spouse’s intent at the time of the separation.

Timothy R. Franklin Represents the Widow at Court

Attorney Franklin represented Appellant at the U.S. Court of Appeals for Veterans Claims (CAVC). He argued that even if the widow and the veteran had separated in the 1990s, the Board had failed to properly explain how the widow was at fault for the separation or intended to desert the veteran.

In June 2019, a CAVC judge agreed and issued a decision in Appellant’s favor. The judge stated that the Board never discussed how the widow was at fault for any separation that may have existed, and therefore the Board had failed to adequately explain its decision. The CAVC judge then remanded the appeal to the Board to issue a new decision that fixed the errors in its decision, giving Appellant another opportunity to qualify as a surviving spouse.

Don’t Appeal to the CAVC on Your Own – We Can Help

Appeals at the CAVC require you to understand federal statutes, VA regulations, and case law. Many times, like here, you need to understand how those different rules work together to support your case.

We represent veterans at the CAVC for no charge and offer free consultations. But act fast, whether you contact us or another accredited attorney, because you only have 120 days from the date of the Board decision to appeal to the CAVC.

Link to CAVC Decision


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