Citation Nr: 1307077 Decision Date: 03/01/13 Archive Date: 03/11/13 DOCKET NO. 12-02 694 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to recognition as the surviving spouse of the Veteran for the purpose of receiving VA death benefits. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and B. W. ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran served on active duty from June 1951 to October 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 administrative decision of the Department of Veterans Affairs (VA) Pension Management Center in St. Paul, Minnesota which denied the appellant's claim for dependency and indemnity compensation (DIC), death pension, and accrued benefits because the appellant cannot be recognized as the surviving spouse of the Veteran. In January 2013, the appellant testified at a Videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. In evaluating this case, the Board has not only reviewed the appellant's physical claims file, but has also reviewed the appellant's file on the "Virtual VA" system to ensure a complete assessment of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran and appellant married in April 1959. 2. The Veteran and appellant were legally divorced prior to the Veteran's death. 3. The Veteran died in August 2010 and the death certificate listed his marital status as married to S.F.S. CONCLUSION OF LAW The criteria for entitlement to recognition as the surviving spouse of the Veteran, for the purpose of receiving VA death benefits, have not been met. 38 U.S.C.A. §§ 101(3), 103 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.1(j), 3.5, 3.50 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b) (2011); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The VCAA is not applicable to matters in which the law, and not the evidence, is dispositive. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). VA will refrain from providing assistance in obtaining evidence where the claimant is ineligible for the benefits sought because of lack of qualifying service, lack of Veteran status, or other lack of legal eligibility. 38 C.F.R. § 3.159(d) (2012). VCAA has been considered; however, the provisions of the VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts are dispositive in a matter. Manning v. Principi, 16 Vet. App. 534, 542-543 (2002). In the present case there is no legal basis upon which the sought death benefits may be awarded, and the appellant's claim must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Moreover, this decision results in a denial of recognition as the Veteran's surviving spouse for the purpose of receiving VA death benefits and any failure to provide notice as to the effective date and rating is harmless error. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As the law is dispositive in this case, the appellant is thus not entitled to VCAA-related assistance and notification. Absent any evidence from the appellant indicating otherwise, there is no need to further attempt to confirm the evidence already obtained by VA. Recognition As the Surviving Spouse of the Veteran For VA purposes, a marriage is considered valid under the law of the place where the parties resided at the time of marriage, or the law of the place where the parties resided when the right to benefits accrued. 38 U.S.C.A. § 103(c) (West 2002); 38 C.F.R. § 3.1(j) (2012). A 'surviving spouse' is defined as (1) a person of the opposite sex in a recognized marriage for VA purposes; (2) who was the spouse of the Veteran at the time of the Veteran's death; (3) who lived with the Veteran continuously from the date of marriage to the date of the Veteran's death except, as provided in 38 C.F.R. § 3.53(a), where there was a separation which was due to the misconduct of, or procured by, the Veteran without the fault of the spouse; and (4) who, except as provided in 38 C.F.R. § 3.55, 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 U.S.C.A. § 101(3) (West 2002); 38 C.F.R. § 3.50(b) (2012). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). After a full review of the record, the Board concludes that a preponderance of the evidence is against a finding of recognition of the appellant as the surviving spouse of the Veteran for the purpose of receiving VA death benefits. A marriage certificate indicated that the appellant and Veteran were married in April 1959. While a divorce decree is not of record, the appellant testified that after approximately 13 to 14 years of marriage, she and the Veteran legally divorced. See hearing transcript at 5. The appellant herself admitted numerous times throughout the claim and appeal process that she and Veteran were not married at the time of his death in August 2010. In February 2011, the appellant identified herself as the Veteran's surviving spouse in her Application for DIC benefits, via a VA Form 21-534. However, the application also indicated that the she divorced the Veteran in April 1971. It also included the statement, "[w]idow divorced [the Veteran] after 12 years because of spousal abuse and domestic violence. The marriage ended 39 years before the Veteran's death and the widow never remarried. The union provided three kids which were raised by the widow [and] are all grown." In the February 2011 claim, the appellant explicitly indicated that she did not live continuously with the Veteran from the date of marriage to the date of his death. In a May 2011 notice of disagreement, the appellant asserted that she divorced the Veteran when he came back from Vietnam because he was violent, abused her, and had a substance abuse problem. She feared for the safety of herself and her children. In a substantive appeal, via a VA Form 9, she further explained that she divorced the Veteran as a result of his physical abuse and constant drinking. At that time, she included an incident report from September 1970 which indicated the appellant's complaint of assault by the Veteran. Most recently, at the January 2013 Board hearing, the appellant reiterated her previous contentions of record and asserted that DIC benefits should be granted essentially because the fault of the divorce was on the Veteran. The Board acknowledges the arguments advanced by the appellant; however, there is competent and probative evidence of record that shows the Veteran and appellant were divorced in or around April 1971, and at the time of his death in August 2010, the appellant was not listed as his surviving spouse. As cited above, the criteria for recognition as a surviving spouse for VA purposes includes one who was the spouse of the Veteran at the time of the Veteran's death. See 38 U.S.C.A. § 101(3) (West 2002); 38 C.F.R. § 3.50(b) (2012). Since a surviving spouse is defined by law as a person who was the spouse of the veteran at the time of the veteran's death, the appellant's divorce from the Veteran bars her from eligibility for status as his surviving spouse. 38 U.S.C.A. § 101(3) ("surviving spouse means . . . a person . . . who was the spouse of a veteran at the time of the veteran's death"); 38 C.F.R. § 3.50(b)(2). The evidence of record shows that the appellant was not married to the Veteran at the time of his death. As the facts in this case are not in dispute, and as recognition of the appellant as the surviving spouse of the Veteran is legally precluded, her claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). (CONTINUED ON NEXT PAGE) ORDER Recognition as the surviving spouse of the Veteran for the purpose of receiving VA death benefits is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs