Citation Nr: 0812727 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 05-36 269 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to restoration of Dependency and Indemnity Compensation (DIC). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The veteran had active service from August 1966 to September 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) decision of March 2005. Although the appellant requested a Board hearing in her November 2005 substantive appeal, in a written statement dated in April 2006, she withdrew her hearing request. FINDINGS OF FACT 1. The appellant was the surviving spouse of the veteran, who died in July 1992. 2. The appellant received DIC benefits effective from August 1992 until the benefits were terminated upon her remarriage in May 1997. 3. At the time of her May 1997 remarriage, the appellant was 56 years old, and she is still married. CONCLUSION OF LAW Entitlement to restoration of DIC is not established. 38 U.S.C.A. § 103 (West 2002 & Supp. 2007); 38 C.F.R. § 3.55 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The essential facts are not in dispute; the case rests on the interpretation and application of the relevant law. The Veterans Claims Assistance Act of 2000 does not affect matters on appeal when the issue is limited to statutory interpretation. See Mason v. Principi, 16 Vet. App. 129 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also VAOPGCPREC 2-2004 (2004), 69 Fed. Reg. 25180 (2004) (holding that VCAA notice was not required where evidence could not establish entitlement to the benefit claimed). Regardless, the RO has explained to the appellant the bases for denial of the claim in the April 2006 supplemental statement of the case, and afforded her the opportunity to present information and evidence in support of the claim. There is no possibility that any additional notice or development would aid the appellant in substantiating her claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); see Dela Cruz. Thus, any deficiency of notice or of the duty to assist constitutes merely harmless error. The appellant is the remarried widow of the veteran, who died in July 1992. After the veteran's death, she began receiving DIC benefits, effective in August 1992, until her remarriage in May 1997. Her DIC benefits were terminated effective May 1, 1997. At that time, under VA law, a surviving spouse who had remarried was not entitled to DIC, unless that remarriage was terminated by death, divorce, or annulment. See 38 U.S.C.A. §§ 101(3), 1311(e)(1) (West 1991 & Supp. 1996). Currently, she claims that she should be entitled to restoration of DIC pursuant to a change in the law enacted in 2003, which provides for payment of DIC to surviving spouses who remarry after the age of 57. See 38 U.S.C.A. § 103(d)(2)(B) (West 2002 & Supp. 2007). Although she was 56 years old at the time she remarried, she does not feel that this cutoff age of 57 years is fair. In general, entitlement to VA benefits as a surviving spouse terminates with the remarriage of the surviving spouse, and cannot be reinstated unless the subsequent marriage has ended, such as by death, divorce, or annulment. See 38 U.S.C.A. § 103(d); 38 C.F.R. § 3.55. Legislation enacted in 2002 and 2003 carved out some limited exceptions, providing for specific benefits to certain surviving spouses whose remarriages are still intact. In the Veterans Benefits Act of 2002, retention of CHAMPVA benefits was authorized for surviving spouses who remarried after the age of 55. Pub. L. 107-330, § 101(a), 116 Stat. 2820 (2002) (codified at 38 U.S.C.A. § 103(d)(2)(B)). The following year, legislation was enacted, permitting surviving spouses who remarried after the age of 57 to retain additional VA benefits, such as DIC and dependents' educational assistance. Veterans Benefits Act of 2003, Pub. L. 108-123, § 101(a), 117 Stat. 2651 (2003) (codified at 38 U.S.C.A. § 103(d)(2)(B)). Thus, the law as it stands currently authorizes DIC benefits for surviving spouses who are currently remarried, but only if they remarried after the age of 57. The Board is unaware of the reasons for the selection of this age as the cutoff; indeed, examination of the legislative history discloses that 55 years was the age originally proposed. However, that is not the version of the bill that was passed by Congress, and the Board's function is to apply the law, as it stands, to the facts of a particular case. The legislative history is only important if the law is ambiguous on some point; here, the law clearly authorizes benefits only with the stated age limitations. The appellant contends that when the law was initially amended in 2002, the cutoff age was 55 years for entitlement to resumption of DIC benefits. In general, the revision of law is done in such a way as to minimize the changes in language in the original. For this reason, revisions to a law must be carefully read in their entire context. In the law revised in this case, taken out of context, it does indeed appear from the language in the amendment, that the law was amended in 2003 to establish the cutoff age as 57 years, from a previous age of 55 years. However, in fact, the previous law only pertained to CHAMPVA benefits. Specifically, after the 2002 amendments, 38 U.S.C. § 103(d)(2)(B) read as follows: "The remarriage after age 55 of the surviving spouse of a veteran shall not bar the furnishing of benefits under section 1781 [CHAMPVA] of this title to such person as the surviving spouse of the veteran." The 2003 amendment added, for the first time in VA history, a provision authorizing DIC to currently remarried surviving spouses, but only if the remarriage takes place after age 57. Pub.L. 108-183, § 101(a), struck out "The remarriage after age 55" and inserted "The remarriage after age 57 of the surviving spouse of a veteran shall not bar the furnishing of benefits specified in paragraph (5) to such person as the surviving spouse of the veteran. Notwithstanding the previous sentence, the remarriage after age 55". By striking the phrase "The remarriage after age 55" and inserting it, instead, after the amended section, the effect of the change is as follows, with the entirely new portion in boldface: The remarriage after age 57 of the surviving spouse of a veteran shall not bar the furnishing of benefits specified in paragraph (5) to such person as the surviving spouse of the veteran. Notwithstanding the previous sentence, the remarriage after age 55 of the surviving spouse of a veteran shall not bar the furnishing of benefits under section 1781 [CHAMPVA] of this title to such person as the surviving spouse of the veteran. As can be seen, it is clear that the final version of the law never authorized DIC for remarried surviving spouses who remarried after the age of 55, rather than 57. The appellant also contends, in essence, that since the 2002 law did not specifically bar DIC benefits for remarried widows who remarried at 55, it must be presumed that she was eligible. However, the law did bar benefits to remarried widows. Specifically, under 38 U.S.C.A. § 1310, DIC benefits may be paid to a "surviving spouse." Under 38 U.S.C.A. § 101(3), the definition of a surviving spouse includes requirements pertaining to marriage as well as the following: ". . . and who has not remarried . . ." Thus, the 2002 and 2003 amendments authorized limited exceptions to the general rule that a veteran's widow who remarries is no longer a "surviving spouse," under VA law, and, hence, no longer entitled to VA benefits based on her deceased husband's service, as long as that marriage is in effect. The Board understands that at least part of her frustration is based on the seemingly arbitrary age cut-off, which she states she missed by only about 104 days. However, legal age requirements, which include, besides the requirement applicable in this case, the right to vote at age 18, and certain age-related SSA benefits, are absolute requirements. The Board is sympathetic to the appellant's arguments, but, unfortunately, is unable to provide a legal remedy, as the law is clearly stated. In this regard, federal laws authorizing monetary benefits are enacted by Congress, and, 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. 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). Indeed, the U. S. Supreme Court, in Richmond, went so far as to point out that "[i]t is a federal crime, punishable by fine and imprisonment, for any Government officer or employee to knowingly spend money in excess of that appropriated by Congress." Richmond, 110 S. Ct. at 2474. Since the appellant's claim fails because of absence of legal merit or lack of entitlement under the law, the claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet.App. 426 (1994). (CONTINUED ON NEXT PAGE) ORDER Entitlement to restoration of DIC is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs