Citation Nr: 1314216 Decision Date: 04/30/13 Archive Date: 05/15/13 DOCKET NO. 12-15 894 ) DATE ) ) On appeal from the Department of Veterans Affairs Pension Management Center in Milwaukee, Wisconsin THE ISSUE Whether the Appellant may be recognized as the Veteran's surviving spouse for VA death benefit purposes. ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from November 1950 to September 1952. The Veteran died in February 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating actions of the Department of Veterans Affairs (VA) Regional Office in North Little Rock, Arkansas; Regional Office and Insurance Center in Philadelphia, Pennsylvania; and the Pension Management Center in Milwaukee, Wisconsin. The Appellant requested a Travel Board hearing on her VA Form 9. In January 2013 the Appellant was notified that a Board hearing was scheduled for February 2013 at the RO in North Little Rock, Arkansas. Subsequently, in January 2013, the Appellant notified VA that she would not be able to make the hearing for her appeal since she had a stroke three years prior and could not drive all the way to Little Rock. She also stated that she did not have anyone else to drive her to the appointment. The Board notes that the Appellant did not request that her hearing be rescheduled. As such, the Board finds that the Appellant withdrew her request for a hearing and will proceed with adjudication of the claim. 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 Appellant and the Veteran were married from May 1965 to May 1987; and were legally divorced in May 1987. 2. The Veteran died in February 2008. 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 death 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. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to Appellant's claim, the law as mandated by statute, and not the evidence, is dispositive. 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 duty to notify is inapplicable. See Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Similarly, there is no duty to notify or assist 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 notice or assistance 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 death benefits. DIC and death pension benefits may be paid to the surviving spouse of a Veteran in certain circumstances. See 38 C.F.R. § 3.5 (2012). 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 September 2010 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 May 1965 to May 1987. 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 May 1965. A final divorce decree of record reveals that the parties were divorced in May 1987. The Appellant reported that she was informed by an attorney that there was no "dissolventment of divorce." The Appellant indicated that the divorce was by mutual consent, as the Veteran was a farmer and could not leave the farm. The Appellant stated that she filed for divorce and the Veteran paid. There is no indication that the divorce decree was set aside or voided. The record reveals and the Appellant reports that the Veteran died in February 2008. At no time during the period on appeal did the Appellant argue that she was married to the Veteran at the time of the Veteran's death. The Appellant argues that she should be entitled to benefits because "an article in the paper sometime in 1987 or 1988 that read Congress passed a law that stated 'a person could draw on a Veterans pension, even [though] divorced.'" The Appellant further argues that the law did not stipulate who divorced whom, or when or for whatever reasons. A review of the record clearly shows, and the Appellant does not dispute, that she and the Veteran were not married at the time of his death in February 2008 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 in divorce in 1987, more than 20 years before his death. The validity of the divorce is not in question and is deemed valid. 38 C.F.R. § 3.206. 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 death benefits purposes is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs