Citation Nr: 1301705 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 09-18 145 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to recognition as a surviving spouse of the Veteran for Department of Veterans Affairs (VA) benefits purposes. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from July 1965 to July 1967. The Veteran had five years prior service; the branch and character of service are unknown, though it is not pertinent to the current appeal. His death occurred in November 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which denied the Appellant's claim of entitlement to dependency and indemnity compensation (DIC), death pension, and accrued benefits. FINDINGS OF FACT 1. The Appellant and the Veteran were married from April 1962 to November 1976; they were legally divorced on November [redacted], 1976. 2. The Veteran died on November [redacted], 1988. 3. At the time of the Veteran's death, the Appellant was not legally married to the Veteran. CONCLUSION OF LAW The Appellant is not entitled to recognition as the Veteran's surviving spouse for the purpose of receiving VA benefits. 38 U.S.C.A. §§ 101(3), 103(c) (West 2002); 38 C.F.R. §§ 3.1(j), 3.50, 3.52, 3.102, 3.206 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. § 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veterans Claims' (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). With regard to the claim of entitlement to DIC under the provisions of 38 U.S.C.A. § 1318, the law as mandated by statute, and not the evidence, is dispositive of this appeal. 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.). Therefore, the decision with respect to this issue rests on the interpretation of the law, and the VCAA is inapplicable. See Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Similarly, compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim. See Wensch v. Principi, 15 Vet. App. 362, 368 (2001). Therefore, any deficiencies of VCAA notice or assistance, if any, are rendered moot with respect to this issue. II. Analysis The Appellant claims entitlement to recognition as the Veteran's surviving spouse for the purpose of receiving VA DIC benefits. Specifically, she claimed entitlement to service connection for the cause of the Veteran's death from cancer as result of exposure to herbicides while serving in the Republic of Vietnam. DIC and death pension benefits may be paid to the surviving spouse of a Veteran in certain circumstances. However, the Board must determine whether the Appellant is entitled to recognition as the Veteran's surviving spouse for the purpose of receiving these VA benefits. Generally, to be entitled to VA benefits as a "surviving spouse" of a veteran, a claimant must: (1) be of the opposite sex of the veteran; (2) have been the veteran's spouse at the time of the veteran's death; (3) have lived continuously with the veteran from the date of their marriage to the date of the veteran's death; and (4) not have remarried or, since the veteran's death, been living with someone and holding herself out openly to the public as the spouse of another person. 38 U.S.C.A. § 101(3). "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 rights to benefits accrued. 38 U.S.C.A. § 103(c); 38 C.F.R. § 3.1(j). A valid marriage may be established by various types of documentary evidence together with the claimant's certified statement concerning the date, place and circumstances of dissolution of any prior marriage, provided that such facts, if they were to be corroborated by the evidence, would warrant acceptance of the marriage as valid. 38 C.F.R. § 3.205(a). In jurisdictions where marriages other than by ceremony are recognized, the marriage may be established by the affidavits or certified statements of one or both of the parties to the marriage, if living, setting forth all of the facts and circumstances concerning the alleged marriage, such as the agreement between the parties at the beginning of their cohabitation, the period of cohabitation, places and dates of residences, and whether children were born as a result of the relationship. This evidence should be supplemented by affidavits or certified statements from two or more persons who know as the result of personal observation the reputed relationship which existed between the parties to the alleged marriage including the periods of cohabitation, places of residences, whether the parties held themselves out as husband and wife, and whether they were generally accepted as such in the communities in which they lived. 38 C.F.R. § 3.205(a)(6). Pertaining to the requirements of 38 C.F.R. § 3.53, regulations provide that there must be continuous cohabitation from the date of marriage to the date of death of the veteran except where the evidence shows that any separation was due to the misconduct of, or procured by, the veteran without the fault of the surviving spouse. The statement of the surviving spouse as to the reason for the separation will be accepted in the absence of contradictory information. If the evidence establishes that the separation was by mutual consent and that the parties lived apart for purposes of convenience, health, businesses, or any other reason which did not show an intent on the part of the surviving spouse to desert the veteran, the continuity of the cohabitation will not be considered as having been broken. 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. 38 C.F.R. § 3.206. In this case, the relevant evidence includes a January 2007 VA Form 21-534 (Application For Dependency and Indemnity Compensation, Death Pension and Accrued Benefits By A Surviving Spouse Or Child (Including Death Compensation If Applicable)), wherein the Appellant indicates that she and the Veteran were married from 1962 until 1976. She further indicated the marriage ended in divorce. The record also contains a copy of a marriage certificate indicating that the Veteran and the Appellant were married in April 1972 in August, Georgia. A final divorce decree reveals that the parties entered into an agreement in October 1976 and a total divorce was granted on November [redacted], 1976, in the Superior Court, Coweta County, Georgia. The Veteran's death certificate from the State of Georgia lists November [redacted], 1988, as the date of death. The certificate reveals the Veteran was married at the time of death; the name of his spouse was not listed. The Veteran's sister was listed as the informant on the death certificate. The Veteran's sister filed an Application for Burial Benefits in 1988. She also filed an application for United States Flag for Burial Purposes; listing herself as the person entitled to receive the flag. In a January 2007 letter, the Appellant indicated she was married to the Veteran in April 1962 and was married to him while he served on active duty. She also indicated that she was divorced from the Veteran in November 1976 and never remarried. She stated that according to her divorce agreement, she was to receive alimony for the remainder of her life and as a dependent survivor, she would like to be compensated financially and receive any benefits available, especially medical care (since she had extensive medical expenses). In a May 2009 VA Form 9 (Appeal to Board of Veterans' Appeals), the Appellant acknowledged that though she may not be the Veteran's surviving spouse, she should be eligible for DIC because she was married to the Veteran when he served on active duty, was his sole support while he was in medical school, and helped care for him when he was sick. She further indicated that she was dependent on the Veteran for financial help and his "untimely illness and death [had] become a hardship for [her] at this stage of [her] life." In October 2012, the Appellant present testimony before the undersigned Veterans Law Judge. She testified that she was divorced from the Veteran at the time of his death, but she was entitled to DIC because she was married to the Veteran the longest. BVA Transcript at 2. She further testified that she divorced the Veteran because he subjected her and her children to physical and mental abuse. Id. The Appellant revealed that the Veteran married for the fourth time, six weeks prior to his death, but before he got married she cared for him. BVA Transcript at 3. A review of the record clearly shows that the Appellant and the Veteran were not married at the time of his death in November 1988 and thus, she does not meet all of the requirements of 38 C.F.R. § 3.50. The evidence confirms that her marriage to the Veteran ended 12 years before his death and that she and the Veteran were divorced in 1976. The validity of the divorce is not in question and is deemed valid. 38 C.F.R. § 3.206. In the Appellant's October 2012 hearing testimony, she admitted under oath, and consistently has maintained, that she and the Veteran were divorced at the time of his death. She even revealed that the Veteran was married multiple times after their divorce, and as recent as six weeks prior to his death. The Veteran's death certificate confirms the Veteran was married at the time of his death. Though the certificate does not list the spouse's name, the Appellant has not alleged it was her. Even though the Appellant indicated that she divorced from the Veteran due to his misconduct (alleged abuse), their marriage was legally terminated by divorce in 1976. There was no allegation that she was separated from the Veteran at the time of his death. Though she claims she took care of the Veteran while he was sick, she has not alleged continuous cohabitation from the date of marriage to the date of death of the Veteran. 38 C.F.R. § 3.53. Therefore, the appellant does not meet the requirements of 38 C.F.R. § 3.50 and her claim must be denied. The legal criteria governing one's status as a surviving spouse are clear and specific, and the Board is bound by them. In this case, they do not provide a basis upon which a favorable decision can be rendered. The law in this case is dispositive; therefore, the Appellant's claim must be denied based on a lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to recognition of the Appellant as the Veteran's surviving spouse for VA benefits purposes is denied. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs