Citation Nr: 1330720 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 09-30 972 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES Entitlement to recognition as the Veteran's surviving spouse for Department of Veterans Affairs (VA) purposes, to include death pension benefits. ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from April 1970 to January 1972. He died in August 2008, and the Appellant is seeking recognition as his surviving spouse for VA purposes, to include death pension benefits. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2008 decision by the VA Regional Office (RO) in Philadelphia, Pennsylvania, which, in pertinent part, found that the Appellant was not entitled to death pension benefits as she could not be recognized as the Veteran's surviving spouse for VA purposes. The RO in New York, New York, currently has jurisdiction over the Veteran's VA claims folder. The record reflects the Appellant requested a Board videoconference hearing in conjunction with this appeal in June 2009, and such a hearing was scheduled for October 2011. However, the Appellant withdrew her hearing request in September 2011. See 38 C.F.R. §§ 20.702(e), 20.704(e). As an additional matter, the Appellant has also raised a claim of entitlement to burial benefits. The Board acknowledges that the RO sent correspondence to the Appellant in October 2011 (which was re-sent in November 2011) regarding the burial benefits claim to include a request that she complete a formal VA Form 21-530. However, nothing in the record available for the Board's review, to include the Virtual VA system, indicates any additional action was taken by the agency of original jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this claim, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran and the Appellant were married in September 1978. 2. The Veteran and the Appellant were divorced in September 1999. 3. The Appellant remarried in June 2005, and the record indicates she was still married at the time of the Veteran's death in August 2008. CONCLUSION OF LAW The criteria for recognition as the Veteran's surviving spouse for VA purposes, to include death pension benefits, have not been met. 38 U.S.C.A. §§ 101, 1102, 1304, 1541 (West 2002); 38 C.F.R. §§ 3.1, 3.50, 3.54, 3.55 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this case, as discussed in greater detail below, the Board finds that the appeal must be denied as a matter of law. In VAOPGCPREC 5-2004 (July 23, 2004) VA's Office of General Counsel held that the VCAA does not require either notice or assistance when the claim cannot be substantiated under the law or based on the application of the law to undisputed facts. Similarly, the United States Court of Appeals for Veterans Claims (Court) has held that the VCAA is not applicable to matters in which the law, and not the evidence, is dispositive. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). VA death benefits may be paid to a surviving spouse who was married to the veteran: (1) one year or more prior to the veteran's death, or (2) for any period of time if a child was born of the marriage, or was born to them before the marriage. 38 U.S.C.A. §§ 1102, 1304, 1541; 38 C.F.R. § 3.54. A "surviving spouse" is a person whose marriage to a veteran is 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 right to benefits accrued, and who was the spouse of the veteran at the time of the veteran's death. 38 C.F.R. § 3.50(b); see also 38 U.S.C.A. § 103(c); 38 C.F.R. § 3.1(j). The facts in this case are not in dispute. The Veteran and the Appellant were married in September 1978. However, they were divorced in September 1999, the Appellant remarried in June 2005, and the record indicates she was still married at the time of the Veteran's death in August 2008. The Appellant does not dispute that she and the Veteran were divorced at the time of his death. Rather, she contends that she is entitled to VA benefits as she and the Veteran were married for over 20 years, they had 2 children together, and she supported him up to his death to include his burial expenses. The Board does not dispute the fact that the Appellant and the Veteran were married for over 20 years, and that they had children together. However, the law explicitly states that in order to be recognized as the surviving spouse of a veteran one must be married to the veteran at the time of the veteran's death. Id. (Emphasis added). Here, the Veteran and the Appellant were clearly not married at the time of his death in August 2008. Therefore, the Board has no choice but to conclude the Appellant does not satisfy the legal requirements for recognition as the Veteran's surviving spouse for VA purposes, to include death pension benefits. As such, her claim is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (When the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law). The Board does wish to note 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. However, the Board 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; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board also wishes to note that by this decision it intimates no opinion as to any final outcome warranted regarding the burial benefits claim noted in the Introduction. The legal standards for burial benefits are different from those discussed in the instant case, and are not entirely dependent upon whether the Appellant qualifies as a surviving spouse for VA purposes. See 38 U.S.C.A. §§ 2302, 2303, 2307; 38 C.F.R. §§ 3.1600-3.1610. ORDER Recognition as the Veteran's surviving spouse for VA purposes, to include death pension benefits, is denied. ____________________________________________ STEVEN E. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs