Citation Nr: 1324634 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 11-25 794 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to recognition as the surviving spouse of the Veteran for the purposes of receipt of Veterans' Administration death benefits. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from September 1964 to August 1966. The Veteran died in June 1986. The appellant was previously married to the Veteran, and seeks recognition as his surviving spouse for Veterans' Administration death benefits purposes. This matter comes before the Board of Veterans' Appeals (Board) from an August 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, that denied the above claim. In July 2013, the claimant testified at a video hearing before the undersigned Veterans' Law Judge. A transcript of the hearing has been associated with the record on appeal. 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). FINDING OF FACT The appellant obtained a divorce from the Veteran in November 1978 prior to his June 1986 death. CONCLUSION OF LAW The criteria for recognition as the surviving spouse of the Veteran for VA death benefits purposes have not been met. 38 U.S.C.A. § 1541 (West 2002); 38 C.F.R. §§ 3.3, 3.30, 3.50, 3.314 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Because the application of the law to the undisputed 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). The claimant testified at a video hearing before the undersigned in July 2013. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Board hearing, the VLJ noted the elements of the claim that were lacking to substantiate the claim. Moreover, the VLJ asked questions to help clarify the appellant's claim. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the appellant. The hearing focused on the elements necessary to substantiate the claim, and the appellant, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate her claim. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Certain VA death benefits, including death pension, dependency and indemnity compensation (DIC) benefits, and accrued benefits are payable to a Veteran's surviving spouse. 38 U.S.C.A. §§ 1310, 1541 (West 2002). "Spouse" is defined as by regulation as "a person of the opposite sex whose marriage to the veteran meets the requirements of [38 C.F.R.] § 3.1(j)." 38 C.F.R. § 3.50(a). 38 C.F.R. § 3.1(j) defines "marriage" as "a marriage valid under the law of the place where the parties resided at the time of the marriage, or the law of the place where the parties resided when the rights to benefits accrued." Id. A "surviving spouse" is defined as a member of the opposite sex who was the spouse of the Veteran at the time of the Veteran's death. 38 C.F.R. § 3.50 (b). The burden of proof is upon the appellant to establish her status as the surviving spouse of the veteran with respect to claims for DIC and other death benefits. Sandoval v. Brown, 7 Vet. App. 7, 9 (1994). The facts of this case are not in dispute and are as follows. The appellant and the Veteran were married in July 1967. They had two children during the marriage. The record contains a November 1978 Decree of Dissolution showing that their marriage was terminated by divorce in November 1978. The Certificate of Death shows the Veteran died in June 1986. While the appellant claims that she should be entitled to VA death benefits because the Social Security Administration (SSA) awarded her Widow's Death Benefits because of the two children she had with the Veteran during their marriage, she does not claim and the record does not show that they either remarried prior to his death or otherwise reestablished their marital relationship prior to his death. In fact, the appellant testified that she remarried another man prior to the Veteran's death. Likewise, the June 1986 Certificate of Death appears to show that the Veteran remarried another woman before his death. Given the above facts, the Board finds that the claim for receipt of VA death benefits must be denied as a matter of law because the appellant was not the Veteran's "spouse" at the time of his death and therefore she cannot be his "surviving spouse. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim on the ground of lack of legal merit). In denying this claim, the Board acknowledges the Veteran's service as well as the unfortunate circumstances of the appellant's case. The Board notes that the appellant's arguments essentially constitute a theory of equitable relief. Although the Board denies her claim as a matter of law as lacking legal merit, the Board is sympathetic to her claim. The Board, however, is without authority to grant it on an equitable basis and instead is constrained to follow the specific provisions of law. See 38 U.S.C.A. § 7104 (West 2002); Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). ORDER Recognition as the surviving spouse of the Veteran for purposes of the receipt of VA death benefits is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs