Citation Nr: 1120747	
Decision Date: 05/27/11    Archive Date: 06/06/11

DOCKET NO.  10-42 419	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida


THE ISSUE

Recognition of the appellant as the surviving spouse of the Veteran for purposes of entitlement to death pension.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Christopher Maynard, Counsel


INTRODUCTION

The Veteran upon whose service the claim is based, had active wartime service during World War II.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 administrative decision by the RO which found that the appellant was not the recognized surviving spouse of the deceased Veteran for purposes of death pension benefits.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010).  38 U.S.C.A. § 7107(a)(2) (West 2002).  


FINDINGS OF FACT

1.  The appellant and the Veteran were married at the time of his death in October 1985.  

2.  The appellant remarried in 1995, was widowed in 1997, remarried in 1999, and was widowed a third time in 2004.  

3.  The appellant's subsequent remarriages terminated after November 1, 1990.  


CONCLUSION OF LAW

The appellant is precluded from recognition as the Veteran's surviving spouse for the purpose of receiving death pension benefits.  38 U.S.C.A. §§ 101(3), 103, 1541 (West 2002); 38 C.F.R. §§ 3.50, 3.55 (2010).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Clams Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010).  

However, where the law and not the evidence is dispositive of the claim, the above provisions are not applicable.  See Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Manning v. Principi, 16 Vet. App. 534, 542 (2002); Mason v. Principi, 16 Vet. App. 129 (2002).  As shown below, the undisputed facts preclude the appellant from being recognized as the surviving spouse of the Veteran for purposes of death pension to which she claims entitlement.  The claim for death pension benefits must therefore be denied as a matter of law, and VCAA notice is, therefore, inapplicable to the claim.  

In pertinent part, for VA purposes, a "surviving spouse" means a person of the opposite sex whose marriage to the veteran meets the requirements of 38 C.F.R. § 3.1(j) and who was the spouse of the veteran at the time of the veteran's death and: (1) 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 (2) has not remarried or has not since the death of the veteran and after September 19, 1962, lived with another person of the opposite sex and held himself or herself out openly to the public to be the spouse of such other person.  38 C.F.R. § 3.50(b) (2010).  Exceptions to this are set out in 38 C.F.R. § 3.55.   

The facts in this case are not in dispute and show that the appellant was legally married to the Veteran for over 40 years at the time of his death in 1985, and that they lived together from the date of their marriage to the date of his death.  The appellant remarried in 1995 and was widowed in 1997, and remarried a third time in January 1999, and was widowed in 2004.  The issue is therefore, whether the appellant qualifies for any of the exceptions in 38 C.F.R. § 3.55  

The exceptions to the general bar to recognition as a surviving spouse of the Veteran for VA purposes, when the surviving spouse remarries, turns on the particular underlying benefit sought.  Here, the appellant seeks death pension benefits.  For these purposes, to be recognized as the Veteran's surviving spouse requires that the remarriage of the surviving spouse have occurred on or after January 1, 1971, and terminated prior to November 1, 1990, or terminated by legal proceedings commenced prior to November 1, 1990, (or to have been void or annulled).  As the appellant's second marriage did not occur until after November 1, 1990 and did not terminate until 1997, and there is no suggestion the remarriage was void or annulled, she does not meet the criteria for recognition as surviving spouse of the Veteran for purposes of receipt of death pension benefits.  See 38 C.F.R. § 3.55(2)(i).  

The Board is bound by the applicable statutes and regulations.  38 U.S.C.A. § 7104(c) (West 2002); 38 C.F.R. § 20.101(a) (2010).  Those statutes and regulations preclude recognition as a surviving spouse for a claimant seeking death pension benefits who has remarried except in circumstances not applicable in this case, as shown above.  Consequently, recognition of the appellant as the Veteran's surviving spouse is legally precluded, and her claim for death pension benefits must therefore be denied as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  







ORDER

Recognition as the surviving spouse of the Veteran for purposes of entitlement to death pension is denied.  




____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs