Citation Nr: 0812106	
Decision Date: 04/11/08    Archive Date: 04/23/08

DOCKET NO.  06-06 894	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to recognition as the veteran's surviving spouse 
for VA death benefits purposes. 




ATTORNEY FOR THE BOARD

Thomas H. O'Shay, Counsel 






INTRODUCTION

The veteran had active military service from June 1961 to 
April 1965.  He died in January 2005.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal of a February 2005 decision by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Waco, Texas, which determined that the appellant was not the 
veteran's surviving spouse for the purpose of VA death 
benefits.
 

FINDINGS OF FACT

1.  The appellant and the deceased veteran married in 
November 1968, but divorced in December 2000, and this is not 
in dispute.

2.  The veteran died in January 2005.
 

CONCLUSION OF LAW

The appellant is not entitled to recognition as the veteran's 
surviving spouse for purposes of VA death benefits.  38 
U.S.C.A. §§ 101, 103 (West 2002); 38 C.F.R. 
§§ 3.1, 3.5, 3.50, 3.206 (2007). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Under 38 U.S.C.A. § 5103, VA must notify the claimant of the 
information and evidence not of record that is necessary to 
substantiate the claim, and of which information and evidence 
that VA will seek to provide and which information and 
evidence the claimant is expected to provide.  Furthermore, 
in compliance with 38 C.F.R. § 3.159(b), the notification 
should include the request that the claimant provide any 
evidence in her possession that pertains to the claim.  

The above notice obligations are not, however, applicable to 
matters in which the law, and not the evidence, is 
dispositive.  See Mason v. Principi, 16 Vet. App. 129, 132 
(2002).  As will be discussed in further detail below, the 
facts in this case are undisputed, and it is the law which 
controls here.  Consequently, the VCAA's notice provisions 
are inapplicable.

Moreover, VA will refrain from providing assistance in 
obtaining evidence where the claimant is ineligible for the 
benefits sought because of lack of qualifying service, lack 
of veteran status, or other lack of legal eligibility.  38 
C.F.R. 
§ 3.159(d).  See VAOPGCPREC 5-2004.  In this case, it is 
undisputed that the appellant and the veteran were divorced 
when he died, and that, as a consequence, she is ineligible 
by operation of law and regulation to receive VA death 
benefits.  In this regard, the Board notes that the divorce 
decree for the appellant and the veteran is not of record.  
Nevertheless, in March 2001 the veteran reported the divorce 
to VA, the appellant admits that she was divorced from him at 
the time of his death, and the death certificate indicates 
that the veteran was divorced when he died.  Nor does the 
appellant contend that she lived with him after the divorce, 
or that they otherwise established a second marriage to each 
other.  The only outstanding evidence identified by the 
appellant is that of documents purportedly reflecting her 
abuse at his hands.  As discussed in detail below, such 
claimed abuse, although certainly regrettable, is 
insufficient to establish her as the veteran's surviving 
spouse in light of her divorce from the veteran. 

In short, any notice and assistance obligations have been met 
in this case.

The appellant asserts that she is entitled to dependency and 
indemnity compensation benefits (DIC) as the surviving spouse 
of the veteran.  The record shows that she and the veteran 
were married in November 1968.  In a March 2001 statement, 
the veteran reported that they had divorced in December 2000, 
and requested that she be removed as his dependent.  VA 
complied with his request.

In January 2005, the appellant informed VA that the veteran 
had died.  His death certificate shows that he died in 
January 2005, and that he was divorced at the time of death.

On her February 2005 claim for death benefits, the appellant 
reported that she and the veteran had divorced in December 
2000.  She indicated that they separated at least in part 
because of his acts of violence, and that they did not live 
together continuously from the date of marriage until he 
died.  In several statements on file, the appellant 
acknowledges that she and the veteran were divorced at the 
time of his death.  She argues that an exception nevertheless 
should be made for her, because she had to tolerate abuse 
from him while married, which actually prompted her to secure 
the divorce.  She also argues that she should be recognized 
as his surviving spouse because she was left with debt from 
the marriage.

The record shows that in response to the appellant's claim 
for burial benefits, service connection for the cause of the 
veteran's death was granted in May 2005.

Governing law provides that DIC benefits may be paid to the 
surviving spouse of the veteran if certain requirements are 
met.  38 U.S.C.A. §§ 1304, 1310, 1311, 1541; 38 C.F.R. § 3.5.

A "surviving spouse" is defined as a person of the opposite 
sex who was the spouse of the 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) and who has not remarried or (in cases not 
involving remarriage) has not, since the death of the 
veteran, lived with another person and held himself or 
herself out openly to the public to be the spouse of such 
other person.  See 38 U.S.C.A. § 101(3); 38 C.F.R. § 3.50.

The validity of a divorce decree, regular on its face, will 
be questioned by VA only when such validity is put in issue 
by a party thereto or a person whose interest in a claim for 
VA benefits would be affected thereby.  In cases where 
recognition of the decree is thus brought into question, 
where the issue is whether the veteran is single or married 
(dissolution of a subsisting marriage), there must be a bona 
fide domicile in addition to the standards of the granting 
jurisdiction respecting validity of divorce.  38 C.F.R. § 
3.206.

Although the divorce decree for the appellant and the veteran 
is not of record, the appellant acknowledges that they were 
divorced at the time he died, consistent with the veteran's 
own statement in March 2001, and with the death certificate.  
She does not dispute the validity of the divorce decree, or 
contend that she and the veteran lived together after the 
divorce or otherwise re-established a marriage.  Instead, she 
claims that the abuse she suffered at his hands, as well as 
the debt resulting from her marriage should be taken into 
consideration.

Although sympathetic to the appellant's statements regarding 
her relationship with the veteran prior to his death, the 
Board notes that in evaluating whether she is entitled to DIC 
benefits, only a "surviving spouse" may qualify for 
pension, compensation, or DIC benefits.  At the time of the 
veteran's death in January 2005, the appellant was not 
married to the veteran.  This is not in dispute.  For this 
reason, the law prohibits the appellant from receiving 
benefits as the surviving spouse of the veteran.

Although the appellant contends that the veteran's abuse was 
responsible for their separation, the Board notes that the 
provision of 38 C.F.R. § 3.50, pertaining to a veteran's 
misconduct without the fault of the spouse, applies only when 
the veteran and spouse are separated, and it does not apply 
when a veteran and spouse are divorced, as in this case.

The Board acknowledges the appellant's concerns over the debt 
she incurred from her marriage to the veteran.  Such debt has 
no bearing, however, on whether she is entitled to 
recognition as the veteran's surviving spouse.

Given that the appellant and the veteran were divorced at the 
time of his death, the law does not recognize the appellant 
as a surviving spouse of the veteran for the purpose of VA 
benefits.  As the law and not the evidence of record is 
dispositive in this case, the claim must be denied because of 
the lack of legal entitlement under the law.  See Sabonis v. 
Brown, 6 Vet. App. 426, 430 (1994). 
 

ORDER

Entitlement to recognition as the veteran's surviving spouse 
for VA death benefits purposes is denied. 





____________________________________________
JAMES L. MARCH 
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs