Citation Nr: 1313304 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 10-47 235 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in St. Paul, Minnesota THE ISSUE Whether VA was correct to deny Dependency and Indemnity Compensation (DIC), death pension and accrued benefits. ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran had active military service from October 1965 to March 1966 and from May 1968 to August 1969. He passed away on September 15, 1974. The appellant seeks recognition as the Veteran's surviving spouse for reinstatement of VA death pension benefits and for DIC. This appeal comes to the Board of Veterans' Appeals (Board) from a June 2010 rating decision. The Board must note that in reviewing this case the Board has not only reviewed the physical claims file, but also the file on the "Virtual VA" system to insure a total review of the evidence. The issue of aid and attendance was raised in a May 2010 claim, but does not appear to have been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The appellant was married to the Veteran at the time of his death in September 1974. 2. After the Veteran's death, the appellant was reportedly awarded death pension benefits as his surviving spouse, but the benefits were terminated as a result of her remarriage. 3. The appellant was subsequently remarried to R.T. from June 1976 to October 1989; married to M.M. from September 1990 to August 1993; and to J.H. from June 2001 to May 2005. Each of these marriages ended in divorce. 4. The appellant's death pension benefits were terminated on the basis that she was no longer the unremarried surviving spouse of the Veteran. 5. The appellant's final remarriage was terminated by divorce in May 2005. 6. There is no basis in law for reinstatement of eligibility for death pension benefits. 7. There is no evidence showing that the Veteran was service connected for any disabilities at the time of his death, and no evidence has been advanced suggesting that the Veteran's death was in any way the result of his military service. 8. No evidence has been advanced indicating that the Veteran had a claim pending at the time of his death. CONCLUSIONS OF LAW VA was correct to deny Dependency and Indemnity Compensation (DIC), death pension and accrued benefits. 38 U.S.C.A. §§ 101, 1310 (West 2002); 38 C.F.R. §§ 3.50, 3.55 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The relevant facts in this case are not in dispute. The appellant and the Veteran married in June 1972. The appellant was married to the Veteran at the time of his death in September 1974. According to her notice of disagreement, the appellant initially received death pension in 1974, but this was reportedly terminated by her first remarriage following the Veteran's death. Following the Veteran's death, the appellant, by her own admission, has remarried on three occasions. She was married to R.T. from June 1976 to October 1989; married to M.M. from September 1990 to August 1993; and married to J.H. from June 2001 to May 2005. Each of these marriages ended in divorce. In August 2009, the appellant filed a claim seeking reinstatement of death pension benefits as the Veteran's widow, as well as DIC and accrued benefits. In evaluating the appellant's claim, the Board must first consider whether any of the appellant's remarriages serve as a bar to her eligibility for VA death pension benefits, in light of her subsequent divorces, and current unmarried status. Governing law provides that death pension may be paid to the surviving spouse of a veteran if certain requirements are met. See 38 U.S.C.A. § 1541. A 'surviving spouse' is defined as a person of the opposite sex who was the spouse of a veteran at the time of his death, who lived with the veteran continuously from the date of marriage to the date of his 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, except as provided in section 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 herself out openly to the public to be the spouse of such other person. See 38 C.F.R. § 3.50. In this case, the appellant was married to the Veteran at the time of his death. However, her remarriage in June 1976 ended her status as the "surviving spouse" of the Veteran for VA pension purposes. Therefore, at that time she lost eligibility for death pension benefits. She now contends that the termination of her third remarriage by divorce in May 2005 should permit her to once again become eligible for death pension benefits. 38 C.F.R. § 3.55 does provide several exceptions to the provisions of 38 C.F.R. § 3.50. Essentially, several provisions have been carved out for different types of benefits, even if a widow remarries after a veteran's death. However, no specific exception has been carved out for VA death pension. That is, to receive pension as a widow, the widow must qualify as a surviving spouse, which is precluded by remarriage. Specifically, 38 C.F.R. § 3.55 provides 10 provisions which address situations in which a person who remarries is not barred from receiving VA benefits as a surviving spouse: 38 C.F.R. § 3.55 (1): Remarriage of a surviving spouse shall not bar the furnishing of benefits to such surviving spouse if the marriage: (i) Was void, or (ii) Has been annulled by a court having basic authority to render annulment decrees, unless it is determined by the Department of Veterans Affairs that the annulment was obtained through fraud by either party or by collusion. In this case, there is no indication that the appellant's remarriages were ever found to be void or were otherwise annulled. The appellant has plainly asserted that she was remarried and divorced three times, and there is no evidence to the contrary. There is no evidence to suggest any annulments ever occurred. 38 C.F.R. § 3.55 (2): On or after January 1, 1971, remarriage of a surviving spouse terminated prior to November 1, 1990, or terminated by legal proceedings commenced prior to November 1, 1990, by an individual who, but for the remarriage, would be considered the surviving spouse, shall not bar the furnishing of benefits to such surviving spouse provided that the marriage: (i) Has been terminated by death, or (ii) Has been dissolved by a court with basic authority to render divorce decrees unless the Department of Veterans Affairs determines that the divorce was secured through fraud by the surviving spouse or by collusion. Here, the appellant terminated her first remarriage by divorce prior to November 1, 1990, but her second and third remarriages commenced after November 1, 1990. As such, this exception is inapplicable. 38 C.F.R. § 3.55 (3): On or after October 1, 1998, remarriage of a surviving spouse terminated by death, divorce, or annulment, will not bar the furnishing of dependency and indemnity compensation (DIC), unless the Secretary determines that the divorce or annulment was secured through fraud or collusion. This provision is not voided by any of the appellant's remarriages. As such, she would be eligible for DIC. However, DIC is not shown to be warranted in this case. Under 38 U.S.C.A. § 1318(a), benefits are payable to the surviving spouse of a "deceased veteran" in the same manner as if the death were service connected. A "deceased veteran" is a veteran who dies not as the result of the veteran's own willful misconduct, and who either was in receipt of compensation, or for any reason was not in receipt of but would have been entitled to receive compensation (but for the receipt of retired or retirement pay), at the time of death for service-connected disabilities rated totally disabling. The service-connected disabilities must have either been continuously rated totally disabling for 10 or more years immediately preceding death; or continuously rated totally disabling for at least five years from the date of the veteran's separation from service. 38 U.S.C.A. § 1318; 38 C.F.R. § 3.22. The total rating may be schedular or based on unemployability. Id. Alternatively, it may be shown that a disease or disability of service origin caused or contributed to causing the Veteran's death. Here, there is no indication that the Veteran was service connected for any disabilities at the time of his death. It therefore follows that he was not rated as totally disabled at any time prior to his death. Moreover, no theory, much less any actual evidence, has been advanced as to how the Veteran's death might have been related to his military service. As such, DIC is not warranted in this case. 38 C.F.R. § 3.55 (4): On or after December 1, 1999, remarriage of a surviving spouse terminated by death, divorce, or annulment, will not bar the furnishing of benefits relating to medical care for survivors and dependents under 38 U.S.C. 1781, educational assistance under 38 U.S.C. chapter 35, or housing loans under 38 U.S.C. chapter 37, unless the Secretary determines that the divorce or annulment was secured through fraud or collusion. However, there is no suggestion that this provision is applicable to the appellant's situation. 38 C.F.R. § 3.55 (5): On or after January 1, 1971, the fact that a surviving spouse has lived with another person and has held himself or herself out openly to the public as the spouse of such other person shall not bar the furnishing of benefits to him or her after he or she terminates the relationship, if the relationship terminated prior to November 1, 1990. Here, the appellant was twice remarried after November 1, 1990. 38 C.F.R. § 3.55 (6): On or after October 1, 1998, the fact that a surviving spouse has lived with another person and has held himself or herself out openly to the public as the spouse of such other person will not bar the furnishing of dependency and indemnity compensation to the surviving spouse if he or she ceases living with such other person and holding himself or herself out openly to the public as such other person's spouse. Again, as discussed, the criteria for DIC have not been met in this case. 38 C.F.R. § 3.55 (7): On or after December 1, 1999, the fact that a surviving spouse has lived with another person and has held himself or herself out openly to the public as the spouse of such other person will not bar the furnishing of benefits relating to medical care for survivors and dependents under 38 U.S.C. 1781, educational assistance under 38 U.S.C. chapter 35, or housing loans under 38 U.S.C. chapter 37 to the surviving spouse if he or she ceases living with such other person and holding himself or herself out openly to the public as such other person's spouse. Such benefits have not been claimed in this case. 38 C.F.R. § 3.55 (8): On or after January 1, 1971, the fact that benefits to a surviving spouse may previously have been barred because his or her conduct or a relationship into which he or she had entered had raised an inference or presumption that he or she had remarried or had been determined to be open and notorious adulterous cohabitation, or similar conduct, shall not bar the furnishing of benefits to such surviving spouse after he or she terminates the conduct or relationship, if the relationship terminated prior to November 1, 1990. Here, the second two remarriages both commenced after November 1, 1990. 38 C.F.R. § 3.55 (9): Benefits under 38 U.S.C. 1781 for a surviving spouse who remarries after age 55. (i) On or after February 4, 2003, the remarriage of a surviving spouse after age 55 shall not bar the furnishing of benefits relating to medical care for survivors and dependents under 38 U.S.C. 1781, subject to the limitation in paragraph (a)(9)(ii) of this section. This benefit is not sought here. (ii) A surviving spouse who remarried after the age of 55, but before December 6, 2002, may be eligible for benefits relating to medical care for survivors and dependents under 38 U.S.C. 1781 pursuant to paragraph (a)(9)(i) only if the application for such benefits was received by VA before December 16, 2004. (Authority: 38 U.S.C. 103). This benefit is not sought here. 38 C.F.R. § 3.55 (10): Benefits for a surviving spouse who remarries after age 57. (i) On or after January 1, 2004, the remarriage of a surviving spouse after the age of 57 shall not bar the furnishing of benefits relating to dependency and indemnity compensation under 38 U.S.C. 1311, medical care for survivors and dependents under 38 U.S.C. 1781, educational assistance under 38 U.S.C. chapter 35, or housing loans under 38 U.S.C. chapter 37, subject to the limitation in paragraph (a)(10)(ii) of this section. (ii) A surviving spouse who remarried after the age of 57, but before December 16, 2003, may be eligible for dependency and indemnity compensation under 38 U.S.C. 1311, medical care for survivors and dependents under 38 U.S.C. 1781, educational assistance under 38 U.S.C. chapter 35, or housing loans under 38 U.S.C. chapter 37 pursuant to paragraph (a)(10)(i) only if the application for such benefits was received by VA before December 16, 2004. These benefits are either not sought here, or as discussed, DIC is not warranted based on the evidence of record. As discussed, the record does not show that the Veteran had any service-connected disabilities at the time of his death and the appellant has never received DIC benefits. DIC benefits are payments made to a surviving spouse based on a service-connected death (38 C.F.R. § 3.5). In contrast, death pension benefits are provided to a surviving spouse based on nonservice-connected death where a veteran had qualifying service and certain income and net worth requirements are met. 38 C.F.R. § 3.3(b). The Board has carefully reviewed the evidence of record in this case and finds that eligibility for death pension benefits is legally precluded. The statute cited above is clear and unambiguous in providing that restored eligibility for benefits following the dissolution of a remarriage is limited to DIC, medical care for survivors and dependents of certain veterans, educational assistance, and housing loans. There is no provision in law to reinstate death pension benefits based on the divorce of the appellant's fourth husband in May 2005. Death pension is not a form of DIC. In short, despite the fact that the appellant is no longer "remarried" currently, she is no longer considered the "surviving spouse" of the Veteran for the purposes of VA death pension. For reasons explained above, no legal exception is applicable here. As there is no evidence that any of the exceptions listed in 38 U.S.C.A. § 103(d) and 38 C.F.R. § 3.55 apply, the appellant's remarriage precludes recognition of her as the Veteran's surviving spouse for purposes of the DIC and death pension benefits that she seeks. Thus, her appeal is denied. Moreover, there is no allegation that any claim was pending at the time of the Veteran's death, so no claim for accrued benefits could be raised. The disposition of this claim is based on the law, and not on the facts of the case, which provides that recognition of the appellant as the Veteran's surviving spouse is legally precluded. As such, her claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). While the Board is sympathetic to the appellant's circumstances, the Board is bound by the applicable statutes and regulations. The provisions of the Veterans Claims Assistance Act 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). ORDER Non-service-connected death pension benefits, accrued benefits and DIC are denied. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs