Citation Nr: 1316744 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 11-30 740 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to recognition as the Veteran's surviving spouse for the purpose of establishing eligibility for Department of Veterans Affairs benefits. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A.G. Alderman, Counsel INTRODUCTION The Veteran had active service from October 1967 to October 1969. The Veteran died in August 2008. The appellant is the Veteran's former spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In that decision it was determined that the appellant was not the Veteran's surviving spouse. The appellant requested a hearing before a Veterans Law Judge, to be held at the RO, in May 2013; however, she withdrew her request in correspondence associated with the claims file in May 2013. FINDINGS OF FACT 1. The appellant and the Veteran divorced in August 2007. 2. The Veteran died in August 2008. CONCLUSION OF LAW The appellant is not legally entitled to VA death benefits. 38 U.S.C.A. §§ 101(31), 103(c), 1310, 1541(a) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1(j), 3.50(b), 3.205, 3.206 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The question at issue is whether the appellant is entitled to VA death benefits. Because the law and not the evidence is dispositive, additional factual development would have no bearing on the ultimate outcome. 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. Accordingly, the Veterans Claims Assistance Act of 2000 (VCAA) can have no effect on this appeal. Mason v. Principi, 16 Vet. App. 129, 132 (2002) (VCAA not applicable "because the law as mandated by statute and not the evidence is dispositive of the claim"). The appellant has applied for VA death benefits asserting that she is or should be considered the Veteran's surviving spouse. VA death benefits may be paid to a surviving spouse who was married to the Veteran: (1) one year or more prior to the Veteran's death, or (2) for any period of time if a child was born of the marriage, or was born to them before the marriage. 38 U.S.C.A. §§ 1102, 1304, 1541 (West 2002); 38 C.F.R. § 3.54 (2012). The term "surviving spouse" means a person of the opposite sex who was the spouse of the Veteran at the time of the Veteran's death, and who 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 in the case of temporary separations) and who has not remarried or (in cases not involving remarriage) has not since the death of the Veteran lived with another person 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); 38 C.F.R. § 3.53 (2012). The Veteran and appellant married in October 1977 and divorced in August 2007. The Veteran's certificate of death shows he was divorced and not remarried at the time of his death in August 2008. The appellant admits that she and the Veteran divorced in August 2007 but believes she is entitled to recognition as his surviving spouse since his service-connected mental health disorder led him to initiate the divorce. She said she opposed the divorce and submitted a letter from her pastor affirming that the marital problems leading to divorce were caused by the Veteran's mental state. Based on the evidence, the appellant is not entitled to be recognized as the Veteran's spouse for VA death benefits purposes. The evidence, including the divorce decree, death certificate, and appellant's statements, clearly shows that she and the Veteran were divorced at the time of his death. Although she has introduced evidence concerning her lack of fault in her divorce from the Veteran, the matter is not relevant. VA regulation requires a "surviving spouse" to continuously cohabitate with the veteran except in cases of marital separation due to misconduct of the veteran and without fault of the spouse. 38 C.F.R. § 3.50(b). However, the "surviving spouse" must meet the requirements of 38 C.F.R. § 3.1(j), i.e., a valid marriage under the law of the place where the parties resided. At the time of the Veteran's death there was no valid marriage from which the parties could have had a separation due to their divorce in 2007. Therefore, her argument is without merit. Based on the law and regulations governing this appeal, the appellant may not be recognized as the Veteran's surviving spouse for VA purposes and has no legal basis to claim entitlement to VA death benefits. 38 U.S.C.A. §§ 1304, 1310(a), 1541(a), 5121; 38 C.F.R. §§ 3.3(b)(4), 3.54(c), 3.1000. The claim must be denied as a matter of law; the benefit of the doubt rule is not for application. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER The appeal is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs