Citation Nr: 1300610 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 10-39 608 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Pension Center in St. Paul, Minnesota THE ISSUE Entitlement to dependency and indemnity compensation (DIC) pursuant to 38 U.S.C.A. § 1310. WITNESSES AT HEARING ON APPEAL Appellant and her spouse ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran had active service from January 10, 2003, to January [redacted], 2003. The Veteran died on January [redacted], 2003. The appellant is the Veteran's widow. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2004 decision by the Department of Veterans Affairs (VA) Regional Office (RO) and Pension Center in St. Paul, Minnesota, which determined that the appellant was not entitled to recognition as the Veteran's surviving spouse for purposes of eligibility for DIC benefits. In October 2011, the appellant testified during a hearing before the undersigned Veterans Law Judge (VLJ) at the RO; a transcript of that hearing is of record. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran and the appellant were married at the time of the Veteran's death in January 2003. 2. In July 2007, when the appellant was 55 years old, she married her current spouse. CONCLUSION OF LAW The criteria for recognition as the Veteran's surviving spouse for purposes of establishing eligibility for Dependency and Indemnity Compensation (DIC) benefits have not been met. 38 U.S.C.A. §§ 101, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.50, 3.55, 3.102 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Duty to Notify and the Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA) outlines procedural assistance VA must provide to claimants in certain cases. If the VCAA is applicable, the Board must ensure that the required notice and assistance provisions of the law have been properly applied. There are some claims, however, to which VCAA does not apply. Livesay v. Principi, 15 Vet. App. 165, 178 (2001). Specifically, the VCAA has been held not to apply to claims that, as in this case, turn on statutory interpretation. Smith v. Gober, 14 Vet. App. 227, 231-2 (2000). Thus, because the law as mandated by statute, and not the evidence, is dispositive of this appeal, the VCAA is inapplicable. Mason v. Principi, 16 Vet. App. 129 (2002); see also Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (where application of the law to the facts is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought.) The appellant has been provided with every opportunity to submit evidence and argument in support of her claim, and to respond to VA notices. In addition, the Board finds no further development is required to comply with the duty to assist the appellant in developing the facts pertinent to her claim. See Livesay v. Principi, 15 Vet. App. 165, 178 (2001). II. DIC Benefits The Veteran's widow (appellant) has applied for DIC benefits under the provisions of 38 U.S.C.A. § 1310, asserting that she is the Veteran's surviving spouse. A surviving spouse is defined as a person (a) of the opposite sex; (b) who was the spouse of the veteran at the time of the veteran's death; (c) who lived with the veteran continuously from the date of marriage to the date of the veteran's death (with exceptions not applicable here); and (d) who has not remarried (or engaged in conduct not applicable here). 38 U.S.C.A. § 101(3); see also 38 C.F.R. § 3.50(b). By way of history, the Veteran, an Army National Guard officer, died on January [redacted], 2003, due to arteriosclerotic cardiovascular disease during a mandatory Multiple Unit Training Assembly (MUTA). However, a Report of Casualty dated in February 2003 indicated that the Veteran was on non-duty status at the time of his death. The record shows that the appellant was married to the Veteran at the time of his death. The record also contains no evidence indicating that she did not live continuously with the Veteran from the date of their marriage until his death. Therefore, immediately following the Veteran's death, the appellant was the Veteran's surviving spouse for VA purposes. The appellant filed a claim for burial benefits with VA in December 2003. However, in correspondence dated in January 2004, the RO denied the claim on the basis that the Veteran was not entitled to disability compensation or pension on the date of his death. The appellant did not appeal this adverse decision or file a claim for entitlement to DIC benefits at that time. The appellant married her current spouse in July 2007 at the age of 55. On September 11, 2008, the appellant petitioned the United States Army to change the Veteran's duty status. In an amended Report of Casualty dated on February 19, 2009, the Veteran's duty status at the time of his death was changed to "active." This was because his MUTA participation was found to be covered under active duty, and the cardiac arrest which resulted in his death was specifically listed as one of the three identified causes of death recognized as active duty casualties. In March 2009, the appellant filed her current claim for DIC benefits. She included the names of the three adult children (ages 28, 26, and 23 at the time of the September 2008 petition to change duty status) of the Veteran on her application. In a March 2009 decision, the RO granted entitlement to service connection for the Veteran's cause of death to establish eligibility under 10 U.S.C.A. § 1477. The RO also granted basic eligibility to Dependants' Educational Assistance from January [redacted], 2003, the date of the Veteran's death. However, entitlement to DIC benefits was denied, and the appellant appealed that denial to the Board. The appellant argues that she should be entitled to DIC benefits for purposes of equity and good conscience, as well as for procedural correctness. Specifically, she asserts that she should not be penalized for having remarried in 2007 at age 55 without the knowledge that the Veteran's duty status would be amended to "active" in 2009, thus rendering her eligible for DIC benefits if she had remained unmarried until age 57. DIC is a monthly payment made by VA to a surviving spouse, child, or parent due to a service-connected death. 38 U.S.C.A. § 101(14), 1310, 1311; 38 C.F.R. § 3.5. A veteran's death will be considered service connected where a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a) (2012). The disability is the principal cause of death if it was "the immediate or underlying cause of death or was etiologically related thereto." 38 C.F.R. § 3.312(b). It is a contributory cause if it "contributed substantially or materially" to the cause of death, "combined to cause death," or "aided or lent assistance to the production of death." 38 C.F.R. § 3.312(c)(1). With respect to the correction of military records, as is the case here, under 38 C.F.R. § 3.400(g), an award is effective from the latest of the following dates: 1) date application for change, correction, or modification was filed with the service department, in either an original or a disallowed claim; 2) date of receipt of claim if claim was disallowed; or 3) one year prior to date of reopening of disallowed claim. A "surviving spouse" is 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 since the death of the veteran has not remarried (except in certain circumstances) or has not 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 U.S.C.A. § 101(3); 38 C.F.R. § 3.50(b). In determining whether or not a person was the spouse of a veteran, their marriage must have been 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 U.S.C.A. § 103(c); 38 C.F.R. § 3.1(j). Under 38 U.S.C.A. § 103(d), a surviving spouse who has remarried will not be barred from eligibility for VA benefits if the remarriage is (1) void, (2) has been annulled, or (3) with respect to DIC benefits, medical care, educational assistance, or housing loans, has been terminated by death or divorce. An amendment to Title 38 of the United States Code, effective January 1, 2004, added an additional exception to the remarriage bar for surviving spouse benefits stating that the remarriage of the surviving spouse of a veteran after age 57 shall not bar the furnishing of specified benefits, such as DIC, to such person as the surviving spouse of a veteran. Pub. L. No 108-183, 117 Stat. 2653 (2003) (codified at 38 U.S.C.A. § 103(d)(2)(B)). VA's regulations have been amended to reflect this statutory change stating that the remarriage of a surviving spouse after the age of 57 shall not bar the furnishing of benefits relating to DIC compensation under 38 U.S.C.A. § 1311. 71 Fed. Reg. 29082 (May 19, 2006) (codified at 38 C.F.R. § 3.55(a)(10)). When there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C.A. § 5107. In this case, as discussed above, it is not disputed that the appellant qualified as the Veteran's surviving spouse at the time of the Veteran's death on January [redacted], 2003. However, the appellant remarried on July [redacted], 2007, at the age of 55, and has remained married since that date. There is no evidence or allegation that her July 2007 marriage was terminated by death, divorce, or annulment. To the contrary, her current spouse testified alongside her at her October 2011 Travel Board hearing. The appellant did not file an application with the U.S. Army to change the Veteran's duty status until September 11, 2008, and the appellant's current claim for DIC benefits was not received by VA until March 19, 2009. As such, if an award of DIC benefits were granted, the effective date could not predate September 2008. However, the appellant was no longer a "surviving spouse" as defined by VA regulation at that time, and therefore no longer qualified for receipt of DIC benefits. The Board recognizes that, pursuant to 38 C.F.R. § 3.153, an application for Social Security Administration (SSA) benefits is considered a claim for death benefits and is deemed to have been received in the Department of Veterans Affairs as of the date of receipt by the Social Security Administration, provided such application is "on a form jointly prescribed by the Secretary and the Secretary of Health, Education, and Welfare." However, although the appellant had filed a claim for SSA benefits upon the Veteran's death in 2003, an April 2009 Report of Contact with the SSA revealed that they did not have records dating back to 2003 in order to show what type of application the appellant submitted. The record reveals, however, that the appellant received a lump sum payment from the SSA. The Board notes that SSA Form 8 (Application for Lump-Sum Death Payment) is not recognized by VA as a jointly prescribed form. Rather, jointly prescribed forms include the VA survivor benefit applications and the SSA survivor applications (Forms SSA-4, 5, 7, and 10). As such, there is nothing to suggest that the appellant filed a claim for DIC benefits prior to her remarriage in July 2007. Remarriage of a surviving spouse, regardless of when it occurred, shall not bar the furnishing of benefits to such surviving spouse if the marriage was void or has been annulled. 38 U.S.C.A. § 103(d)(1); 38 C.F.R. § 3.55(a)(1). Since the record contains no evidence that the marriage was void or had been annulled, that exception does not apply here. The Board further emphasizes that the Veteran was not yet 57 years old at the time of her July 2007 remarriage. As indicated above, DIC payments can also be made to a surviving child. See 38 U.S.C.A. § 101(14), 1310, 1311; 38 C.F.R. § 3.5. The definition of the term "child," as defined for the purposes of establishing dependency status, means an unmarried person who is a legitimate child; a child legally adopted before the age of 18 years; a stepchild who acquired that status before the age of 18 years and who is a member of the Veteran's household at the time of the Veteran's death; or an illegitimate child. In addition, the child must be someone who; (1) is under the age of 18 years; (2) before reaching the age of 18 years became permanently incapable of self-support; or (3) after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an approved educational institution. 38 U.S.C.A. § 101(4); 38 C.F.R. § 3.57(a). With respect to the Veteran's children, the record shows that they were ages 28, 26, and 23 at the time of the September 2008 petition to change duty status. As such, none of the Veteran's children qualified as a "child" for purposes of DIC payments during the relevant time period. The Board also acknowledges the appellant's arguments based in equity and good conscience. However, the Board notes that the starting point for interpreting a statute is a review of the plain language itself. Bradley v. Peake, 22 Vet. App. 280, 287 (2008). In pertinent part, VA regulations provide specific exceptions so that not all surviving spouses who have remarried will be barred from eligibility for VA benefits. Notably, there is no language contained in the statute suggesting that such an exception exists with respect to corrected military records. Quite simply, the plain language of the statute does not provide an exception for the appellant's particular set of circumstances. Accordingly, the Board concludes that the criteria for recognition as the Veteran's surviving spouse, or as the Veteran's surviving children, have not been met and the appellant's claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the claim must be denied on the grounds of the absence of legal merit or lack of entitlement under the law). ORDER Entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1310 is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs