Citation Nr: 1335367 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 11-17 192 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Whether the appellant may be recognized as the surviving spouse of the Veteran for VA benefits purposes, to include entitlement to death pension benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran had active service from October 1943 to July 1945. The Veteran died in January 2009. The appellant seeks to establish eligibility as the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a June 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In correspondence received in July 2013 the appellant indicated that she no longer desired a Board hearing on this matter. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The appellant and the Veteran were married in October 1946 and divorced in February 1967. 2. The appellant has not asserted, and the evidence does not show, that she and the Veteran lived together at any point after their February 1967 divorce. 3. The appellant was married to PM from March 1975 to October 1979. 4. The Veteran's death certificate indicates that he died in January 2009 and that his marital status was "divorced." CONCLUSION OF LAW The appellant may not be recognized as the Veteran's surviving spouse, for VA purposes, to include entitlement to death pension benefits. U.S.C.A. §§ 103, 5124 (West 2002); 38 C.F.R. §§ 3.1(j), 3.50, 3.55, 3.205 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Proper notice from VA must inform the claimant of any information and medical or lay evidence not of 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Although VA has statutory and regulatory notice and duty to assist provisions, those provisions are not applicable herein as the above-captioned claim is being denied as a matter of law. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). At any rate, the Board notes that in the initial decision letter and the statement of the case (SOC), the appellant was notified of the type of evidence needed to substantiate her claim, and no evidence has been indentified that has not been obtained. The Appellant seeks to be recognized as the Veteran's surviving spouse, for VA benefits purposes. For VA purposes, a surviving spouse is essentially defined as a person whose marriage to the Veteran meets the requirements of 38 C.F.R. § 3.1(j) and who was the spouse of the Veteran at the time of the Veteran's death; and (1) 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 fault of the spouse; and (2) has not remarried or has not since the death of the Veteran lived with another person and held himself/herself out openly to the public to be the spouse of such other person. 38 C.F.R. §§ 3.50(b), 3.53. A surviving spouse may qualify for pension benefits under the appropriate circumstances. 38 C.F.R. § 3.54. The appellant essentially contends that she should receive VA benefits because she was married to the Veteran from October 1946 to February 1967, and that during that time he was abusive toward her. The appellant has not asserted, and the evidence does not show, that she and the Veteran lived together at any point after their February 1967 divorce. The Veteran's death certificate indicates that he was divorced at the time of his death. Records indicate that the appellant was married to PM from March 1975 to October 1979. The evidence in this case does not show the appellant is the Veteran's surviving spouse. While it is true that the appellant and the Veteran had been married to one another, there is no evidence of record (or even an assertion) indicating that she and the Veteran remarried each other or even lived together at any point after their February 1967 divorce. To qualify for benefits as a surviving spouse, the claimant must have been the Veteran's spouse on the date of the Veteran's death, and the law does not provide any relevant exception to the requirement. In that regard, the record clearly reflects that the appellant was not the Veteran's spouse at the time of his death. The Board has sympathetically considered the appellant's contentions and the lay statements submitted in support of her claim concerning the assertions of abuse she endured while married to the Veteran. Applicable laws and regulations, however, require that the parties be lawfully married at the time of a Veteran's death for the appellant to meet the basic eligibility criteria for death benefits as a surviving spouse. 38 C.F.R. § 3.50. The appellant's status as a former spouse, as opposed to a surviving spouse, forecloses eligibility for VA death benefits. Accordingly, this appeal is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). There is simply no provision pursuant to which the Board may grant the benefit sought by the appellant; the Board is without authority to grant benefits on an equitable basis. 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). ORDER Entitlement to recognition of the appellant as the deceased Veteran's surviving spouse, for the purpose of establishing eligibility for VA benefits, is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs