Citation Nr: 1310818 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 10-45 818 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee THE ISSUE Entitlement to recognition as the Veteran's surviving spouse for purposes of establishing eligibility for dependency and indemnity benefits (DIC), death pension, and accrued benefits. ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from January 1960 to January 1963. He died in May 2009. The appellant argues, in essence, that she should be considered the Veteran's surviving spouse. This matter is before the Board of Veterans' Appeals (Board) from a July 2009 decision of the RO. In connection with this appeal, it is noted that the appellant requested and was scheduled for a personal hearing before an Acting Veterans Law Judge at the RO in March 2012. Although she was notified of the time and date of the hearing by mail sent to her last known address, she failed to appear for that hearing and neither furnished an explanation for her failure to report nor requested a postponement or another hearing. Pursuant to 38 C.F.R. § 20.704(d) (2012), when an appellant fails to report for a scheduled hearing and has not requested a postponement, the case will be processed as though the request for a hearing was withdrawn. FINDINGS OF FACT 1. According to the appellant, she and the Veteran were divorced in 1981. 2. The Veteran died in May 2009. 3. The Veteran's death certificate indicates that upon his death, he was married to someone other than the appellant. CONCLUSION OF LAW The criteria for recognition as the surviving spouse of a veteran for purposes of establishing eligibility for DIC benefits, death pension, and accrued benefits have not been met. 38 U.S.C.A. §§ 101, 103 (West 2002); 38 C.F.R. §§ 3.1, 3.50 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Under VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). VCAA has been considered; however, the provisions of VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts, is 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). Discussion The Veteran died in May 2009. The death certificate lists LH, who is not the appellant, as the Veteran's widow. In June 2009, the appellant applied for death benefits stating that she was the Veteran's "X wife." The Board observes that in her May 2010 notice of disagreement, the appellant stated that she divorced the Veteran but that due to a technicality, she did not know whether they were actually divorced. The appellant produced no marriage certificate, divorce decree, or other documentation related to a marriage to or divorce from the Veteran. 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. § 3.1(j). A "surviving spouse" is defined as a person of the opposite sex whose marriage to the veteran meets the requirements of § 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). Additionally, the spouse must have 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. 38 C.F.R. § 3.50(b)(1). Finally, the spouse must not have remarried or (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 C.F.R. § 3.50(b)(2). It appears that, if ever married, the appellant and the Veteran were divorced. In any event, the appellant cannot qualify at the Veteran's "surviving spouse" because the only official documentation of record, the Veteran's death certificate, lists someone other than the appellant as the Veteran's spouse at death. 38 C.F.R. §§ 3.1(j), 3.50(b). As recognition of the appellant as the Veteran's surviving spouse is legally precluded, her claim must be denied as a matter of law. Sabonis, 6 Vet. App. at 430. The appellant asserts that she should be awarded benefits as the Veteran's surviving spouse because she and the Veteran had three children together, which, according to her, should be "worth something." While the Board is sympathetic to the appellant's circumstances, the Board is unable to provide a legal remedy. The Board is bound by the applicable statutes and regulations. ORDER Entitlement to recognition as the surviving spouse of a veteran for purposes of establishing eligibility for death benefits is denied. ____________________________________________ Michelle L. Kane Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs