Citation Nr: 1316840	
Decision Date: 05/22/13    Archive Date: 05/31/13

DOCKET NO.  06-30 691	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas


THE ISSUE

Entitlement to service connection for the cause of the Veteran's death.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Suzie S. Gaston, Counsel



INTRODUCTION

The Veteran served on active duty from September 1965 to April 1970.  He died in May 2004.  The appellant claims to be his surviving spouse.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision, by the Wichita, Kansas, Regional Office (RO), which denied the appellant's claim of entitlement to service connection for the cause of the Veteran's death.  

An Informal Hearing Presentation, prepared by the representative, dated April 30, 2013, is associated with the electronic file as maintained as part of the Virtual VA system; all electronic files have been reviewed in connection with the appeal.  


FINDINGS OF FACT

1.  The Veteran separated from service in April 1970.  

2.  The appellant and the Veteran were married in May 2004, and had no children.  

3.  The Veteran died in that same month--May 2004.  


CONCLUSION OF LAW

The criteria for recognition of the appellant as the Veteran's surviving spouse for purposes of a claim of service connection for the cause of the Veteran's death have not been met.  38 U.S.C.A. §§ 103, 503, 1102, 1304, 1310, 1311, 1541, 5112, 7104 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1(j), 3.50, 3.53, 3.54, 3.159(d), 3.205, (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The appellant in this case seeks entitlement to service connection for the cause of the Veteran's death and the attendant benefit-dependency and indemnity compensation.  

VA dependency and indemnity compensation (DIC) may be paid to a surviving spouse, who, with respect to date of marriage could have qualified as a surviving spouse for compensation under any law administered by VA in effect on December 31, 1957, or who was married to the Veteran:  (1) Before the expiration of 15 years after termination of the period of service in which the injury or disease which caused the Veteran's death or injury was incurred or aggravated; or (2) for one year or more, or (3) 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 (West 2002); 38 C.F.R. § 3.54(b) (2012).  Consequently, status as a surviving spouse of the Veteran is a threshold requirement for DIC benefits.  

As noted above, the appellant married the Veteran in the State of Kansas in May 2004.  There is no evidence that she meets the criteria of having been married to the Veteran for one year or more.  In fact, the appellant and the Veteran were married in May 2004, less than one month before the Veteran's death later in May.  Accordingly, she fails to meet the definition of surviving spouse as set forth above.  38 C.F.R. § 3.54(a) (1), (b) (2), (c) (2).  

The appellant has not alleged, and the record does not reflect, that she and the Veteran had been married at any prior time, so 38 C.F.R. § 3.54(e), which allows for calculation based on the first of multiple marriages to the Veteran, cannot be applied in determining statutory requirements.  

As the appellant's marriage to the Veteran took place in 2004, it did not occur prior to any of the applicable delimiting dates of 38 C.F.R. § 3.54(a) (3) that would afford her eligibility for entitlement to DIC.  

Further, the appellant has not alleged, and the record does not reflect, that any child was born of the marriage such that would provide eligibility for DIC.  38 C.F.R. § 3.54(a) (2), (b) (3), (c) (3), (d).  Additionally, because the Veteran and the appellant married more than 15 years after the Veteran separated from service, she is not eligible for DIC under § 3.54(b)(1), (c)(1).  

The Board is bound by the law and is without authority to grant benefits on an equitable basis.  See 38 U.S.C.A. §§ 503, 7104 (West 2002 & Supp. 2012); Harvey v. Brown, 6 Vet. App. 416, 425 (1994).  The Board further observes that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress."  Smith (Edward F.) v. Derwinski, 2 Vet. App. 429 (1992) citing Office of Personnel Management v. Richmond, 496 U.S. 414 (1990).  

In cases such as this, where the law is dispositive, the claim must be denied because of the absence of legal merit.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  The law does not provide any relevant exception in this case.  Given the undisputed facts regarding the timing of the marriage and subsequent death of the Veteran, the claim must be denied.  



ORDER

The appeal is denied.  



______________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs