Citation Nr: 1322845 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 08-07 938 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Whether the appellant is entitled to recognition as the Veteran's surviving spouse for the purposes of Department of Veterans Affairs (VA) death benefits. WITNESSES AT HEARING ON APPEAL Appellant and her spouse ATTORNEY FOR THE BOARD C. Fields, Counsel INTRODUCTION The Veteran served on active duty from June 1942 to November 1945. He died in November 1981. The appellant seeks recognition as his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an administrative decision issued by the RO in April 2007. The appellant and her current spouse testified before the undersigned at a hearing at the RO in August 2009. A transcript of that hearing is of record. The Board remanded this case in January 2010, and it now returns for a decision on the merits. There is a paper file and a Virtual VA file (a highly secured electronic storage system) associated with this claim. Both files have been reviewed, and all pertinent documents are associated with the paper claims file. 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 The appellant and the Veteran married in April 1946, and the marriage was terminated by divorce in July 1968, prior to the Veteran's death in November 1981. CONCLUSION OF LAW The criteria for recognition as the Veteran's surviving spouse for the purposes of VA benefits have not been met. 38 U.S.C.A. §§ 101, 103, 1310, 1541 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.50, 3.52, 3.53, 3.54 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not in the 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). Proper VCAA notice should be provided to a claimant prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). Generally, specialized notice is required with regard to a claim for VA death benefits. See Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). However, in this case, the dispositive question is whether the appellant is entitled to recognition as the Veteran's surviving spouse in order to qualify as a proper claimant for VA death benefits. The appellant has provided all pertinent evidence, and the relevant facts are undisputed. As such, application of the pertinent statutes and regulations is dispositive of the issue on appeal, and the VCAA duties to notify and assist are not implicated. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). Moreover, the appellant was notified of the requirements to establish the status as a surviving spouse in several decisional documents, including the initial administrative denial in April 2007 and the February 2008 statement of the case. She has also shown actual knowledge of such requirements, by citing to applicable regulations and arguing that certain exceptions apply in the circumstances of her case, including during the Board hearing. Although the appellant does not appear to understand the meaning of these statutes and regulations, it is clear that she has been made aware of them. The appellant has been notified of her right to representation and indicated that she wished to proceed without a representative. The Board previously remanded this case because several documents dated prior to April 2007 appeared to be missing, including the appellant's claim and the initial denial. Those documents are now of record, and the remand order was satisfied. No further action is necessary to satisfy due process or ensure a fair decision. II. Analysis The appellant seeks to be recognized as the Veteran's surviving spouse in order to qualify for VA death benefits. The undisputed evidence establishes that she married the Veteran in April 1946. Two children were born of the marriage, which terminated by divorce in 1968. The appellant and the Veteran lived apart after that time and did not remarry each other. The Veteran died in November 1981. Thereafter, in 1989, the appellant remarried. The appellant contends that she is entitled to recognition as the Veteran's surviving spouse because they were married for 22 years and had two children prior to their divorce in July 1968, and she did not remarry until several years after the Veteran's death and after the age of 57. She also appears to argue that her divorce from the Veteran should not be a bar to benefits because he was physically and emotionally cruel to her, which led to their divorce (although she initially stated that the divorce was for financial reasons and due to living far apart). See, e.g., notice of disagreement, hearing transcript. Unfortunately, the appellant's arguments reflect a misunderstanding of the applicable statutes and regulations. VA death benefits, including death pension, death compensation, and Dependency and Indemnity Compensation (DIC), are payable to a veteran's surviving spouse under certain circumstances. 38 U.S.C.A. §§ 1310, 1541(a). A "surviving spouse" is 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), and who since the death of the veteran has not remarried (except in certain circumstances) or has not lived with another person of the opposite sex 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. § 3.50(b). When there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C.A. § 5107. In this case, the appellant and the Veteran initially had a valid marriage. However, there is no dispute that they were not married at the time of his death, as they divorced in 1968, more than 10 years prior to his death in 1981. As such, the appellant simply cannot be recognized as the surviving spouse. 38 C.F.R. § 3.50(b). The appellant's assertions that the Veteran was emotionally and physically cruel to her prior to their divorce do not enable a grant of the benefits sought on appeal. This factor would only apply if the appellant and the Veteran had remained married, but did not live together continuously and were physically separated due to the Veteran's misconduct, or the separation was initiated by the Veteran with no fault on the part of the appellant. Id. That is not the situation in this case, as the appellant and the Veteran did not live together continuously because they were, in fact, divorced as of July 1968. The facts that neither the appellant nor the Veteran remarried prior to his death, and she only remarried after his death and after the age of 57, also do not lend support to her claim. The appellant references a provision concerning benefits for a surviving spouse who remarries after age 57, or 38 C.F.R. § 3.55(a)(10). That regulation is inapplicable in this case. First and foremost, it only applies where the individual was actually a surviving spouse, in that she was married to the Veteran at the time of death. Moreover, the regulation provides that, if a surviving spouse remarries after the age of 57, she will not be barred from receiving certain death benefits if the marriage occurred after January 1, 2004, or if the marriage occurred prior to December 16, 2003, and the claim for VA benefits was received prior to December 16, 2004. Neither of these situations occurred here. Accordingly, the criteria for entitlement to recognition as the Veteran's surviving spouse for VA death benefits have not been met, and the appellant's claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the claim must be denied on the grounds of the absence of legal merit or lack of entitlement under the law). ORDER Entitlement to recognition as the Veteran's surviving spouse for the purposes of VA death benefits is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs