Citation Nr: 1334477 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 12-14 246 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to recognition as the Veteran's surviving spouse for the purpose of determining her entitlement to death pension benefits. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Appellant's daughters, B.B. and M.D. ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION 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). The Veteran had active duty service from August 1943 to December 1945. He died in May 2003. The Appellant was married to the Veteran from October 1942 until his death, and seeks recognition as the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied the Appellant's claim for dependency and indemnity compensation (DIC), accrued benefits, and death pension. In August 2012, the Appellant's daughter and power of attorney (POA) testified before the undersigned Acting Veterans Law Judge (AVLJ). A transcript of the hearing has been associated with the Appellant's claims file. In October 2012, the Board remanded this matter for further development, including the provision of a statement of the case (SOC) on the issue of the Appellant's entitlement to DIC compensation. That development has occurred, and the Appellant has not appealed that issue. Therefore, only the matter of her status as the Veteran's surviving spouse for death pension eligibility has returned to the Board for further appellate review. FINDINGS OF FACT 1. The Appellant and the Veteran were married in October 1942, and were married until the Veteran's death in May 2003. 2. The Appellant remarried in November 2005 ("other marriage"). 3. The Appellant's other marriage was terminated in May 2011, due to the death of her husband. CONCLUSION OF LAW The criteria for recognition of the Appellant as the surviving spouse of the Veteran, for purposes of entitlement to VA death pension benefits, have not been met. 38 U.S.C.A. §§ 101, 103, 1541, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.1, 3.3, 3.50, 3.52, 3.53, 3.54, 3.55, 3.205 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2003). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must (1) inform the claimant of any information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and, (3) inform the claimant about the information and evidence the claimant is expected to provide. VA's duties to assist and notify have been considered in this case. However, as it is the law, and not the facts, that is dispositive of the appeal, the duties to notify and assist imposed by the VCAA are not for application in this case. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). The enactment of the VCAA does not affect matters on appeal from the Board on questions limited to statutory interpretation. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Smith v. Gober, 14 Vet. App. 227, 231-232 (2000). In this regard, there is no further assistance that would be reasonably likely to assist the appellant in substantiating the claim. 38 U.S.C.A. § 5103A(a)(2) . Status as Surviving Spouse VA death pension 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; or, (3) in the case of World War II Veterans, prior to January 1, 1957. 38 U.S.C.A. § 1541 (West 2002 & Supp. 2013); 38 C.F.R. § 3.54(a) (2013). Establishing "surviving spouse" status is a threshold requirement that must be met in order to qualify for death pension benefits. To be recognized as the Veteran's surviving spouse for the purpose of establishing entitlement to VA benefits, the Appellant must be a person of the opposite sex who was the spouse of a 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 who has not remarried. 38 U.S.C.A. § 101(3) (West 2002); 38 C.F.R. § 3.50(b)(1) (2013). A surviving spouse may qualify for pension, compensation, or dependency and indemnity compensation under the appropriate circumstances. See 38 C.F.R. § 3.54 (2013). In this case, the Appellant contends that she is the surviving spouse of the Veteran. Her claim has been denied on the basis that she is not the Veteran's surviving spouse, due to her other marriage subsequent to the Veteran's death. On her application for death benefits, she indicated that she and the Veteran were married from October 1942 to May 2003, and that the marriage terminated due to the death of the Veteran. She also indicated she was, at the time of her application, married to another man since November 2005, but that they were not living then together. Additional documents indicate that the Appellant's husband from her other marriage died in May 2011. She has also asserted that she received no support from her other husband's estate. Based on the foregoing, the Board finds that the Appellant has not met the criteria for recognition as a surviving spouse due to her remarriage following the Veteran's death. See Kelly v. Brown, 4 Vet. App. 177 (1993) (deceased veteran's wife who has remarried is not considered a "surviving spouse" for eligibility to receive improved death pension). The Board acknowledges the Appellant's argument that she was not financially supported by her other husband's estate. To the extent that she is arguing that surviving spouse status should be conferred on her on the basis of equity, the Board is unfortunately bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104(c) (West 2002 & Supp. 2013); see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Where, as here, the law and not the evidence is dispositive, the appeal must be denied for failure to state a claim upon which relief may be granted. Sabonis v. Brown, 6 Vet. App. 426 (1994). The benefit of the doubt doctrine is inapplicable because the issue involves the Appellant's status as a claimant. See, e.g., Rogers v. Derwinski, 2 Vet. App. 419, 422 (1992). ORDER Entitlement to recognition of the appellant as the surviving spouse of the Veteran for purposes of establishing eligibility for VA death benefits is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs