Citation Nr: 0810449 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 02-11 241 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Whether the appellant may be recognized as the veteran's surviving spouse for Department of Veterans Affairs (VA) benefits purposes. REPRESENTATION Appellant represented by: John R. Hill , Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. J. O'Mara, Associate Counsel INTRODUCTION The veteran had active service from February 1944 to May 1946. The appellant is the veteran's former spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2001 Administrative Decision of the VA Regional Office (RO) in Denver, Colorado, which held that the appellant was not considered the veteran's surviving spouse for VA benefits purposes. In March 2002, the parties held an informal Decision Review Officer conference. In December 2002, June 2003, and April 2005, the Board remanded the claim on appeal to schedule a travel board hearing. In September 2007, the appellant testified during a hearing at the RO before the undersigned Veterans Law Judge; a transcript of the hearing is of record. FINDING OF FACT The appellant's September 1972 marriage to the veteran was terminated by divorce in July 1988, with knowledge of both parties, and there was no subsequent remarriage between the parties. CONCLUSION OF LAW The criteria for recognition of the appellant as the surviving spouse of the veteran are not met. 38 U.S.C.A. §§ 101(3), 103, 1102, 1304 (West 2002); 38 C.F.R. §§ 3.1(j), 3.50, 3.52, 3.54 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist Before addressing the merits of the claim, the Board is required to address the duty to notify and duty to assist imposed by 38 U.S.C.A. §§ 5103, 5103(A) and 38 C.F.R. § 3.159. VA has a duty to notify a claimant and her representative, if any, of the information and evidence needed to substantiate a claim. This notification obligation was accomplished by way of a letter from the RO to the appellant dated in July 2005. This letter effectively satisfied the notification requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing the appellant about the information and evidence not of record that was necessary to substantiate the claim; (2) informing the appellant about the information and evidence VA would seek to provide; (3) informing the appellant about the information and evidence she was expected to provide; and (4) requesting the appellant provide any evidence in her possession that pertains to her claim. A June 2006 supplemental statement of the case (SSOC) advised the appellant of how VA assigns disability ratings and effective dates and complies with the holding of Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, section 5103(a) notice must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). While there are particularized notice obligations with respect to a claim for DIC benefits, there is no preliminary obligation on the part of VA to conduct a predecisional adjudication of the claim prior to providing a section 5103(a)-compliant notice. Although the appellant was not given notice required by Hupp, as will be explained below, the claim on appeal lacks legal merit; hence, the duties to notify and assist imposed by the VCAA are not applicable in this appeal. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). In addition, VA has a duty to assist a claimant in obtaining evidence necessary to substantiate a claim. Court documents are associated with the claims file. Additionally, the appellant presented testimony at a Board hearing in support of her claim and the transcript of the hearing is of record. The appellant and her representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the claim. As such, all relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained and the case is ready for appellate review. Merits of the Claim DIC benefits may be paid to the surviving spouse of a veteran who died of a service-connected disability. 38 U.S.C.A. § 1310 (West 2002). The appellant claims VA DIC benefits as the surviving spouse of the veteran, who died in November 2000. She contends that she was married to the veteran at one time, and that the subsequent divorce was procured at the veteran's instigation. She also argues that the divorce was procured by fraud on the part of the veteran. In order to establish her status as claimant, it must be shown that the appellant had a valid marriage to the veteran. Aguilar v. Derwinski, 2 Vet.App. 21 (1991). The term "surviving spouse" means a person of the opposite sex who was the spouse of a veteran at the time of the veteran's death, and who lived with the veteran continuously from the date of marriage to the date of the veteran's death (except where there was a separation which 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 2002); 38 C.F.R. § 3.50 (2007). A spouse of a veteran is a person whose marriage to the veteran is valid according to the law of the place where the parties resided at the time of the marriage or the law of the place where the parties resided when the right to benefits accrued. 38 U.S.C.A. § 103(c) (West 2002); 38 C.F.R. § 3.1(j) (2007). In this case, the veteran and the appellant were married in September 1972, but they were divorced in July 1988, prior to the veteran's death in November 2000. Consequently, the appellant was not the legal spouse of the veteran at the time of his death. The appellant contends that her divorce from the veteran was procured by fraud on the part of the veteran. She asserts that the veteran and his attorney failed to inform her of potential veteran's benefits that could be awarded to the veteran during his lifetime. During the course of appeal, the appellant filed a claim to have her divorce vacated. In November 2007, the District Court for the Tenth Judicial District of the County of Anoka in Minnesota ordered that the appellant's motion to reopen her divorce was denied and the terms of the November 1988 Judgment and Decree of divorce remained in full force and effect. Based on the above facts, the appellant and the veteran were divorced at the time of the veteran's death. As noted above, DIC benefits for a "surviving spouse" are only authorized if the claimant was the spouse of a veteran at the time of the veteran's death. Payments of monetary benefits from the Federal Treasury must be authorized by statute, regardless of extenuating circumstances or claims of fairness. See, e.g., Office of Personnel Management v. Richmond, 496 U.S. 414, 426, 110 L. Ed. 2d 387, 110 S. Ct. 2465 (1990); Davenport v. Principi, 16 Vet. App. 522 (2002); Harvey v. Brown, 6 Vet. App. 416 (1994). In other words, unless an individual meets all of the requirements of a particular law, he or she is not entitled to the benefit; indeed the benefit cannot be awarded, regardless of the circumstances. Since the appellant was not married to the veteran at the time of his death, the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). In addition, where, as here, the law and not the evidence is dispositive, the matter on appeal must be terminated or denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to recognition of the appellant as the surviving spouse of the veteran, for purposes of entitlement to VA benefits, is denied. ____________________________________________ N. R. ROBIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs