Citation Nr: 1303128 Decision Date: 01/30/13 Archive Date: 02/05/13 DOCKET NO. 09-12 412 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to compensation as the Veteran's surviving spouse for dependency and indemnity compensation (DIC) purposes. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1968 to November 1969 and March 1971 to March 1974. He died in November 2007. The appellant seeks recognition as the Veteran's surviving spouse. This matter comes to the Board of Veterans' Apeals (Board) from an October 2008 administrative decision of a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was filed in November 2008, a statement of the case was issued in March 2009, and a substantive appeal was received in April 2009. This matter was previously before the Board in February 2011 when the issue on appeal was remanded for additional development. The February 2011 remand directed that the RO contact the county clerk of the county where the marital settlement agreement was file to request a certified copy of the Final Judgment of Simplified Dissolution of Marriage between the appellant and the Veteran. After receipt of this judgment, the RO was directed to readjudicate the appellant's claim. The claims file now contains a copy of the final judgment of dissolution of marriage and the RO provided a supplemental statement of the case, readjudicating this claim, in February 2012. The RO's actions establish compliance with the Board's February 2011 remand directives. FINDING OF FACT The Veteran and the appellant were married in June 1968, and divorced in April 2007; they remained divorced from each other at the time of the Veteran's death in November 2007. CONCLUSION OF LAW The criteria for recognition of the appellant as the Veteran's surviving spouse for VA purposes have not been met. 38 U.S.C.A. §§ 101, 103 (West 2002); 38 C.F.R. §§ 3.1, 3.5, 3.50, 3.206 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. The U. S. Court of Appeals for Veterans Claims has held that the statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of the claim is based on statutory interpretation, rather than consideration of the factual evidence. On the claim decided, the facts are not in dispute. As the analysis below demonstrates, the appellant is not entitled to the benefits sought as a matter of law. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). Factual Background and Analysis The appellant argues that she should be recognized as the Veteran's surviving spouse for purposes of entitlement to VA death benefits. The claims file reflects that the appellant and the Veteran were legally married in June 1968. A copy of a divorce decree shows that they divorced in April 2007. This date is also reflected in a VA status of dependents questionnaire completed by the Veteran prior to his death, in which the Veteran stated that he was divorced in April 2007, and that he had no dependents. The Veteran's death certificate shows that the Veteran died in November 2007. His marital status is listed as "divorced." In a statement dated in October 2008, the appellant asserted that her marriage to the Veteran ended in November 2007, as a result of his death. However, her representative submitted a statement in January 2013, in which he acknowledged that the appellant and the Veteran were legally divorced at the time of his death. In a February 2012 statement, the appellant reported that neither she nor the Veteran remarried. She further reported that they remained friends and spoke often although they lived in different states. VA death benefits, including death pension, death compensation and 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. 38 C.F.R. § 3.50(b). 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). In this case, the record clearly indicates that the appellant and the Veteran were divorced at the time of his death. This fact is not in dispute. The appellant also no longer disputes that she and the Veteran divorced prior to the Veteran's death. A valid marriage between the appellant and the Veteran at the time of the Veteran's death is a basic requirement for recognition as his surviving spouse. Only a "surviving spouse" may qualify for pension, compensation, or DIC benefits, and at the time of the Veteran's death in November 2007, the appellant was not married to him. The Board acknowledges the appellant's statement regarding the detrimental impact of the Veteran's PTSD on the quality of life for her and her children over the years. However, the legal criteria governing the status of a deceased Veteran's widow as a surviving spouse are clear and specific, and the Board is bound by them. As such, the appellant cannot be considered the Veteran's surviving spouse. In sum, the Board finds that the preponderance of the evidence is against a finding that the appellant was the Veteran's surviving spouse for VA purposes and thus, the appellant is not entitled to recognitions as a surviving spouse for VA purposes. Therefore, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107(b), Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to recognition of the appellant as the Veteran's surviving spouse for purposes of receiving VA death benefits is not warranted. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs