(a) General. The requirement that there must be continuous cohabitation from the date of marriage to the date of death of the veteran will be considered as having been met when the evidence shows that any separation was due to the misconduct of, or procured by, the veteran without the fault of the surviving spouse. Temporary separations which ordinarily occur, including those caused for the time being through fault of either party, will not break the continuity of the cohabitation.
(b) Findings of fact. The statement of the surviving spouse as to the reason for the separation will be accepted in the absence of contradictory information. If the evidence establishes that the separation was by mutual consent and that the parties lived apart for purposes of convenience, health, business, or any other reason which did not show an intent on the part of the surviving spouse to desert the veteran, the continuity of the cohabitation will not be considered as having been broken. State laws will not control in determining questions of desertion; however, due weight will be given to findings of fact in court decisions made during the life of the veteran on issues subsequently involved in the application of this section.
[41 FR 18300, May 3, 1976, as amended at 59 FR 32659, June 24, 1994]
Notes of Decisions
Cited in
25
cases (
1 in the last 5 years), 1979–2021 · leading case:
Stillwell v. Brown, 6 Vet. App. 291 (Vet. App. 1994).
Stillwell v. Brown, 6 Vet. App. 291 (Vet. App. 1994).
· cites it 5× “The VA also promulgated 38 C.F.R. § 3.53 , which provides, inter alia: (a) General.”
Gregory v. Brown, 5 Vet. App. 108 (Vet. App. 1993).
· cites it 4× “The BVA ruled against appellant pursuant to 38 C.F.R. § 3.53 (a) (1992) on the grounds that she was not without fault in failing to cohabit continuously with the veteran from the date of their marriage to the date of the veteran's death.”
Alpough v. Nicholson, 490 F.3d 1352 (Fed. Cir. 2007).
· cites it 5× “§ 101 (3) and 38 C.F.R. § 3.53 (b) by requiring her to prove “misconduct” on the part of her spouse in order to be accorded surviving spouse status.”
Trilles v. West, 13 Vet. App. 314 (Vet. App. 2000).
· cites it 2× “50 (1999); 38 C.F.R. § 3.53 (1999) ("statement of the surviving spouse as to the reason for the separation will be accepted in the absence of contradictory information"); see also Cacatian v.”
Golliday v. Brown, 7 Vet. App. 249 (Vet. App. 1994).
· cites it 4× “§ 101 (3) and its interpretive regulation, 38 C.F.R. § 3.53 , concerning the definition of “continuous cohabitation” for the purposes of qualifying as a “surviving spouse” of the veteran.”
Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008).
· cites it 2× “§ 101 (3) and 38 C.F.R. § 3.53 (b) in rejecting surviving spouse's claim for benefits); Wilson, 391 F.”
Gregory v. Brown, 7 Vet. App. 127 (Vet. App. 1994).
· cites it 5× “§ 101 (3) and 38 C.F.R. § 3.53 (1993). First, the Court upheld the BVA’s determination that the appellant had not lived with the veteran continuously from the date of their marriage to the date of the veteran’s death as not clearly erroneous.”
Felton v. Brown, 7 Vet. App. 276 (Vet. App. 1994).
“In Gregory , the Court had held that the first sentence of a duly promulgated regulation, 38 C.F.R. § 3.53 (a) (1992), was inconsistent with the plain meaning of the authorizing statute, 38 U.”
Lamour v. Peake, 544 F.3d 1317 (Fed. Cir. 2008).
“§ 101 (3) and 38 C.F.R. § 3.53 (b) in rejecting a surviving spouse’s claim for benefits); Flores v.”
Berger v. Brown, 10 Vet. App. 166 (Vet. App. 1997).
“The requirement of continuous cohabitation was addressed in 38 C.F.R. § 3.53 (1969): (a) General. The requirement that there must be continuous cohabitation from the date of marriage to the date of death of the veteran will be considered as having been met when the evidence…”
Donald Mulder v. Sloan D. Gibson, 27 Vet. App. 10 (Vet. App. 2014).
“464 (2014) (defining minor as “a person who has not attained the age of majority specified in the applicable State law’’) (emphasis added); 38 C.F.R. § 3.53 (b)(2014) (“State laws will not control in determining questions of desertion ____”) (emphasis added).”
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