Citation Nr: 1320785 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 12-23 941A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia THE ISSUE Entitlement to home loan benefits. ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1960 to January 1961. He died in December 1988. This appeal to the Board of Veterans' Appeals (Board) arose from an August 2012 rating decision in which the RO denied the appellant home loan benefits. The appellant perfected a timely appeal. In June 2013, a Deputy Vice Chairman of the Board granted a motion to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a) (2) (C) (West 2002) and 38 C.F.R. § 20.900(c) (2012). FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. The appellant was not married to the Veteran at the time of his death. CONCLUSION OF LAW As the appellant cannot establish basic eligibility for home loan benefits, the claim on appeal is without legal merit. 38 U.S.C.A. §§ 101, 103, 1541 (West 2002); 38 C.F.R. §§ 3.50; 3.55 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Board notes that the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In this case, the September 2013 Statement of the Case set forth the reasons for denial of the appellant's claim, and she has been afforded full opportunity to present information, evidence, and argument on her behalf. The Board finds that these actions are sufficient to satisfy any due process owed her. As explained in more detail below, the law, and not the evidence, is dispositive of the claim; as such, the duties imposed by the VCAA are not applicable. See Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Manning v. Principi, 16 Vet.App. 534, 542 (2002); Mason v. Principi, 16 Vet.App. 129 (2002). II. Analysis For claims filed on or after January 1, 1959, loan guaranty benefits may be extended to a surviving spouse of a veteran who served in the Armed Forces of the United States at any time on or after September 16, 1940, if the Veteran died in service, or, subsequent to his discharge from service under conditions other than dishonorable, the Veteran died as a result of injury of disease incurred in, or aggravated by, military service. The surviving spouse must meet the requirements of the term "surviving spouse" as outlined in 38 C.F.R. § 3.50, must be unmarried, and must not be an eligible veteran. 38 C.F.R. § 3.805. The requirements of the term "surviving spouse" include a entering into a marriage as defined by 38 C.F.R. § 3.1(j) and being the spouse of the Veteran at the time of his death. 38 C.F.R. § 3.50. Pursuant to 38 C.F.R. § 3.50(b), a surviving spouse also 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; and except as provided in § 3.55, not remarried or, 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. Here, the evidence of record reflects that the appellant and the Veteran were legally married from September 1961 to September 1973. 38 U.S.C.A. § 101(3) (West 2002); 38 C.F.R. § 3.1(j). The claims file reflects a legal divorce decree dated in September 1973. The Veteran later died, in December 1988, at which time he was married to an individual other than the appellant. Here, the appellant contends that she is entitled to recognition as the Veteran's surviving spouse because the marriage did not end as the result of any fault of her own and/or because she has identified law under which remarriage is not a bar to the receipt of home loan benefits. Although the Board acknowledges that remarriage of a surviving spouse that has been terminated by divorce is not a bar to certain benefits including home loan benefits (see 38 U.S.C.A. § 103(2)(A) (West 2002) and 38 C.F.R. § 3.55(a)(3)-(7) (2012)), there is no corresponding provision regarding remarriage of a veteran. 38 C.F.R. § 3.50 plainly states that, in order to be considered a surviving spouse, an individual must have been married to a veteran at the time of his or her death. The appellant and the Veteran had been divorced for approximately 15 years prior to his death and he had remarried. As the appellant was not married to the Veteran at the time of his death, she cannot be recognized under VA regulation as his surviving spouse. Id. As such, there is no legal basis upon which an award of the benefits sought can be granted and the appeal must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER The claim for home loan benefits is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs