Citation Nr: 1122136 Decision Date: 06/08/11 Archive Date: 06/20/11 DOCKET NO. 08-34 219 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to recognition as the Veteran's surviving spouse for purposes of receiving VA death benefits. REPRESENTATION Carlos A. Vilches Lopez, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and her four children ATTORNEY FOR THE BOARD B. R. Mullins, Associate Counsel INTRODUCTION The Veteran had active service from October 1965 to September 1967. The appellant was previously the Veteran's spouse. The Veteran passed away on May [redacted], 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 administrative decision of the Department of Veterans Affairs Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico, concluding that the appellant was not a surviving spouse of the Veteran. The appellant testified at a hearing before the undersigned Veterans Law Judge at the RO in San Juan, the Commonwealth of Puerto Rico, in February 2010. A written transcript of this hearing has been prepared and incorporated into the evidence of record. FINDINGS OF FACT 1. The Veteran and the appellant were married in October 1968. 2. The Veteran and the appellant subsequently divorced in February 2003. 3. There is no evidence of record suggesting that the Veteran and the appellant ever remarried. CONCLUSION OF LAW The criteria are not met to recognize the appellant as the Veteran's surviving spouse for VA death benefits purposes. 38 U.S.C.A. §§ 101(3), 1102, 1304 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.1(j), 3.50, 3.52, 3.54 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist This case is one in which the law is dispositive of the issue on appeal. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); VAOPGCPREC 5-2004 (June 23, 2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). Under such circumstances, the duties to notify and assist are not applicable. Mason v. Principi, 16 Vet. App. 129 (2002). Further, VA has not duty to assist the appellant in obtaining evidence where, as here, there is no reasonable possibility that any further assistance would aid her in substantiating this claim. See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001). Analysis The record demonstrates that the Veteran died on May [redacted], 2007. The Veteran's autopsy report lists the cause of the Veteran's death as cancer of the throat and ischemic cardiopathy. It is the appellant's contention that she is entitled to VA death benefits as the surviving spouse of the Veteran. However, the evidence fails to establish that the appellant was the spouse of the Veteran at the time of his death, and as such, she is not entitled to the benefit sought as a matter of law. VA death benefits, including death and indemnity compensation (DIC), are payable to a Veteran's surviving spouse under certain circumstances. 38 U.S.C.A. §§ 1310, 1541(a). 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 fault of the spouse; and (2) has not remarried or has not since the death of the Veteran lived with another person of the opposite sex and held himself/herself out openly to the public to be the spouse of such other person. 38 C.F.R. §§ 3.50(b), 3.53. For VA benefits purposes, a marriage means a marriage valid under 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 C.F.R. § 103(c); 38 C.F.R. § 3.1(j). The appellant has the burden to establish her status as a rightful claimant. Sandoval v. Brown, 7 Vet. App. 7, 9 (1994). The record contains a marriage certificate, confirming that the Veteran and the appellant were married in October 1968. However, the record also contains a February 2003 divorce decree from the Superior Court of the Commonwealth of Puerto Rico. The appellant has conceded throughout the pendency of her claim that she and the Veteran were granted a divorce in 2003. The appellant has also not challenged the validity of the divorce decree and there is no indication that the divorce was secured through fraud or collusion. Therefore, there is no question that the appellant was not married to the Veteran at the time of his death. Nonetheless, the appellant argued during her February 2011 hearing that she only obtained a divorce from the Veteran because he was extremely jealous, making wild accusations involving her and one of her sons. The appellant's children provided testimony in support of this contention. Therefore, it would appear that the appellant is arguing that the divorce was procured as a result of misconduct by the Veteran. However, this argument is without merit, as we are dealing with a legal divorce rather than a mere period of separation. The facts are dispositive and clearly demonstrate that a legal divorce was obtained in this case. On this basis, the Board cannot find that the appellant was the legal spouse of the Veteran at the time of his death and she therefore lacks basic eligibility for VA benefits on the basis of her claims status as the Veteran's surviving spouse. See 38 C.F.R. §§ 3.50(b), 3.53. In cases such as this, where the law is dispositive, the claim must be denied because of the absence of legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board sympathizes with the appellant, but under the applicable law and regulations, the facts argued in this matter are not relevant. To qualify for benefits as a surviving spouse, the claimant must have been the Veteran's spouse on the date of his death. The law does not provide any relevant exception to that requirement. As the evidence of record fails to demonstrate that the appellant is a surviving spouse of the Veteran, DIC benefits are not warranted. ORDER Recognition of the appellant as the Veteran's surviving spouse for VA benefit purposes is denied. ____________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs