Citation Nr: 1321533 Decision Date: 07/05/13 Archive Date: 07/12/13 DOCKET NO. 10-00 049 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Whether the appellant can be recognized as the Veteran's surviving spouse for VA death benefits purposes. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran served on active duty from September 1958 to September 1961, and died in September 1981. The appellant asserts that she is the surviving spouse of the Veteran. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 decision by a Department of Veterans Affairs (VA) Regional Office (RO). The appellant testified at a June 2013 Board hearing by the undersigned held by videoconference from the RO, a transcript of which is associated with the claims file. The 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). FINDING OF FACT At the time of the Veteran's death, the Veteran and the appellant were divorced. CONCLUSION OF LAW The relevant criteria for establishing the appellant as the Veteran's surviving spouse for VA purposes have not been met. 38 U.S.C.A. §§ 101, 103(a) (West 2002); 38 C.F.R. §§ 3.1, 3.50, 3.205 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Because the application of the law to the facts is dispositive of this appeal, no discussion of VA's duties to notify and assist is necessary. See Mason v. Principi, 16 Vet. App. 129 (2002). However, the Board notes that an August 2007 letter provided appropriate notice as to the information and evidence necessary to substantiate the claim. The Appellant seeks to be recognized as the Veteran's surviving spouse for VA benefits purposes. At present, the term "surviving spouse" means a person of the opposite sex (1) whose marriage to the veteran was valid under the law of the place of residence at the time of the marriage or when the right to benefits accrued; (2) who was the spouse of a veteran at the time of the veteran's death; (3) who lived with the veteran continuously from the date of marriage to the date of the veteran's death (i.e., continuous cohabitation); (4) and who, except as provided in 38 C.F.R. § 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 U.S.C.A. § 101(3); 38 C.F.R. § 3.50(b). The evidence of record reflects that the appellant filed a request with VA in March 1980 for apportionment of the Veteran's VA benefits on the basis that he was not discharging his financial obligations towards their six children. In that document, she indicated that she and the Veteran were divorced. Her July 2006 claim for death benefits also listed them as divorced. At her June 2013 Board hearing, she testified that she and the Veteran were legally divorced at the time of his death; her testimony included argument that "their actual divorce as valid less than 30 days" prior to the Veteran's September 1981 death, and that they had been separated for between 9 and 12 months, beginning in late 1980 or early 1981. Most critically, in her original claim for death benefits, received by VA in December 1981, she stated that they were divorced, gave a divorce date of September 13, 1979, and stated the location of their divorce was Galveston, Texas. Although the actual divorce decree is not of record, VA accepts the oral, written, or faxed statement of a claimant as proof of termination of marriage provided the statement contains the date of termination (month and year), and location of the event (city and/or county and state). See VA Adjudication Procedural Manual, M21-MR III.iii.5.B.8.a. Taking this evidence as a whole, the Board finds that the Veteran and the appellant were not legally married at the time of his death. Accordingly, she cannot be recognized as his surviving spouse for VA purposes. This is the case even though, as she testified at her June 2013 Board hearing, she is in receipt of benefits from the Social Security Administration (SSA). Decisions made by SSA with regard to benefits are not binding on VA as SSA subscribes to different statutory and regulatory criteria. Collier v. Derwinski, 1 Vet. App. 413 (1991). While SSA may have provided the appellant with benefits based on her marriage to the Veteran, VA's laws and regulations governing survivor benefits make no such provision. To the extent that the appellant noted in her April 2008 notice of disagreement that she and the Veteran were separated when he died, and her November 2009 Form 9 that they were married until he died, the Board finds these allegations not credible in light of her written statements and filings discussed above that she and the Veteran were divorced, and especially her admission under oath at her Board hearing that the divorce was final prior to his death. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (The credibility of a witness can be impeached by a showing of interest, bias, or inconsistent statements). As to the appellant's arguments at her Board hearing that the Veteran died very shortly after their divorce, the Board notes that the length of time between the date of divorce and the date of the Veteran's death is irrelevant; once a divorce decree is promulgated, the former spouse can no longer be recognized as a dependent for VA benefits purposes, and therefore, cannot be recognized as a survivor for DIC purposes. While the Board has sympathetically considered the appellant's contentions and testimony, applicable laws and regulations require that the parties be lawfully married at the time of the Veteran's death for the appellant to meet the basic eligibility criteria for death benefits as a surviving spouse. 38 C.F.R. § 3.50. The appellant's status as a former spouse, as opposed to a surviving spouse, forecloses eligibility for VA death benefits. In summary, the Board finds that at the time of the Veteran's death, he and the appellant were divorced. As she and the Veteran were not married at the time of his death, she is precluded from recognition as his surviving spouse. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to recognition of the appellant as the deceased Veteran's surviving spouse, for the purpose of establishing eligibility for VA benefits, is denied ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs