Citation Nr: 1329415 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 12-06 727 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to recognition as the Veteran's surviving spouse for the purpose of establishing eligibility to VA death benefits. ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The Veteran had active military service from November 1951 to October 1953. He died in December 1980. The present matter comes to the Board of Veterans' Appeals (Board) following a January 2011 decision of the Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO) in Philadelphia, Pennsylvania. (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 1. The Veteran died in December 1980. 2. The appellant remarried in November 1982, prior to her 55th birthday, and remained married until December 2006. CONCLUSION OF LAW The criteria for recognition as the Veteran's surviving spouse for purposes of establishing eligibility for death benefits have not been met. 38 U.S.C.A. § 101 (West 2002); 38 C.F.R. §§ 3.50, 3.55 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant asserts that she is the Veteran's surviving spouse for the purpose of establishing eligibility for VA death benefits. She filed an initial application for VA death benefits (VA Form 21-534) in October 2010. The appellant married the Veteran in July 1956 and remained married to him until his death in December 1980. The appellant has reported that she remarried in November 1982 and remained married to her second husband until December 2006 at which time she and her second husband divorced. (While a copy of the appellant's divorce decree associated with her second marriage is of record, a marriage certificate documenting her remarriage in November 1982 is not associated with the claims folder.) Generally, a veteran's surviving spouse is eligible for VA benefits, including dependency and indemnity compensation (DIC), death pension benefits, and accrued benefits, when a veteran dies. A "surviving spouse" is a person 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 and has not since remarried. See generally 38 U.S.C.A. § 101(3), (31); 38 C.F.R. § 3.50(b). The exceptions to the general rules noted above, in particular remarriage of a surviving spouse, are provided at 38 C.F.R. § 3.55. In pertinent part, the regulation provides that on or after January 1, 1971, remarriage of a surviving spouse terminated prior to November 1, 1990, or terminated by legal proceedings commenced prior to November 1, 1990, by an individual who, but for the remarriage, would be considered the surviving spouse, shall not bar the furnishing of benefits to such surviving spouse provided that the marriage has been terminated by death, or has been dissolved by a court with basic authority to render divorce decrees unless the Department of Veterans Affairs determines that the divorce was secured through fraud by the surviving spouse or by collusion. 38 C.F.R. 3.55(a)(2). Also, on or after January 1, 1971, the fact that a surviving spouse has lived with another person and has held herself out openly to the public as a spouse of such other person shall not bar the furnishing of benefits to her after she terminates the relationship, if the relationship terminated prior to November 1, 1990. 38 C.F.R. 3.55(a)(5). Furthermore, a surviving spouse who remarries after the age of 55, but before December 6, 2002, may be eligible for benefits relating to medical care for survivors and dependents only if the application for such benefits was received by VA before December 16, 2004. 38 C.F.R. 3.55(a)(9)(ii). Otherwise, a surviving spouse who remarried after the age of 57, but before December 16, 2003, may be eligible for DIC under 38 U.S.C. § 1311, medical care for survivors and dependents, educational assistance, or housing loans only if the application for such benefits was received by VA before December 16, 2004. 38 C.F.R. 3.55(a)(10)(ii). VA defines a "marriage" as a marriage valid under the law of the place where the parties resided at the time of marriage, or the laws of the place where the parties resided when the right to benefits accrued. 38 U.S.C.A. § 103(c); 38 C.F.R. § 3.1(j) (2013). Photocopies of documents necessary to establish birth, death, marriage or relationship under the provisions of 38 C.F.R. §§ 3.205 through 3.215 (2013) are acceptable as evidence if VA is satisfied that the copies are genuine and free from alteration. 38 C.F.R. § 3.204(c) (2013). In the present case, evidence of the appellant's marriage to the Veteran in July 1956 consists of what appears to be a Jewish marriage contract or Ketubah. It is considered generally a spiritual, but not necessarily a legal, document. Otherwise, the record on appeal does not reflect a copy of a state marriage license. Notwithstanding this fact, the Board finds the evidence reasonably supports that the appellant was married to the Veteran. See 38 C.F.R. § 3.205 (2013) (Proof of marriage). As noted above, the appellant has reported that after the death of the Veteran in December 1980 she remarried in November 1982. As a surviving spouse is defined by law as a person who has not remarried, her marriage to her second husband bars the appellant from eligibility for status as the Veteran's surviving spouse. 38 U.S.C.A. § 101(3) (surviving spouse means . . . a person . . . who has not remarried); 38 C.F.R. § 3.50(b)(2) (surviving spouse means a person . . . who . . ., except as provided in § 3.55, has not remarried). Thus, under the general definition of a surviving spouse, once the appellant remarried in November 1982 (even though she later divorced her second husband in December 2006), she no longer had the status of a surviving spouse of the Veteran for purposes of VA death benefits. The only exceptions to the aforementioned classification are those provided in 38 C.F.R. § 3.55, noted above, none of which the appellant has met. While she remarried on or after January 1, 1971, the marriage continued until December 2006 and thus was not terminated prior to November 1, 1990. See 38 C.F.R. § 3.55(a)(2), (5). Additionally, based on the appellant's reporting of her birth date in her application for benefits (VA Form 21-534), the appellant's remarriage in November 1982 was prior to her 55th birthday and her application for death benefits (VA Form 21-534) was received after December 16, 2004. See 38 C.F.R. 3.55(a)(9)(ii), (10)(ii). Therefore, as the law is dispositive of the issue on appeal, the appellant's claim must be denied because of the absence of legal merit or entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board is bound by the law, and this decision is dictated by the relevant statutes and regulations. Based on the undisputed facts of this case and the applicable law, the appellant cannot be recognized as the surviving spouse of the Veteran for purposes of establishing eligibility for VA death benefits. ORDER Recognition of the appellant as the Veteran's surviving spouse for VA death benefits is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs