Citation Nr: 1335398 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 10-20 234 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg THE ISSUE Entitlement to recognition as the surviving spouse of the Veteran for purposes of establishing eligibility for Dependency and Indemnity Compensation (DIC) benefits, based on being remarried after the age of 57. REPRESENTATION Appellant represented by: American Ex-Prisoners of War, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from July 1942 to October 1945. He died in September 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, that denied the appellant's claim on the basis that she could not be recognized as the surviving spouse of the Veteran. The appellant testified before the undersigned at a February 2013 Travel Board hearing. The hearing transcript is of record. FINDINGS OF FACT 1. The appellant was born in January 1939. 2. The Veteran and the appellant were married in June 1985. 3. The appellant's marriage to the Veteran was terminated by his death in September 1995. 4. The appellant was remarried in April 2001 at age of 62. 5. The appellant's claim for DIC benefits was received by VA in September 2009. CONCLUSION OF LAW As a matter of law, the appellant is not eligible for DIC benefits as she does not meet the requirements to be recognized as the surviving spouse of the Veteran. Veterans Benefit Act of 2003, Pub.L. No. 108-183, 117 Stat. 2651 (2003); 38 U.S.C.A. §§ 101, 103, 1310, 1311 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.5, 3.50, 3.55 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify and assist claimants. However, the Board notes that the VCAA notice requirement explicitly applies only to claims for benefits, and does not require notice of the right to file a claim for benefits. See 38 U.S.C.A. § 5103(a) (stating that there needs to be a "substantially complete application" before VCAA notice is required); 38 C.F.R. § 3.159(a)(3), (b)(1). In this case, the Board finds that the law and not the evidence is dispositive. The United States Court of Appeals for Veterans Claims (Court) has held that where the law, and not the underlying facts or development of the facts are dispositive in a matter, the VCAA can have no effect on the appeal. Manning v. Principi, 16 Vet. App. 534, 542-43 (2002); see also Smith v. Gober, 14 Vet. App. 227 (2002) (stating VCAA has no effect on appeal limited to interpretation of law); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2002) (stating VCAA not applicable where law, not factual evidence, is dispositive). Therefore, the Board finds that no further action is necessary to inform or assist the appellant in the development of this appeal. Sabonis v. Brown, 6 Vet. App. 426 (1994). DIC Dependency and indemnity compensation (DIC) benefits are payable to a "surviving spouse" who meets the legal criteria for entitlement to such benefits. 38 U.S.C.A. §§ 101(14), 1310, 1311; 38 C.F.R. § 3.5. The term "surviving spouse" includes: (1) a person of the opposite sex whose marriage to the Veteran meets the requirements noted in 38 C.F.R. § 3.1(j); (2) who was the spouse of the Veteran at the time of the Veteran's death; (3) 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 (4) who has not remarried or lived with another person of the opposite sex and held herself out openly to the public to be the spouse of such other person since the Veteran's death. 38 U.S.C.A. § 101(3); 38 C.F.R. § 3.50. On December 16, 2003, Congress amended Title 38 of the United States Code to authorize DIC benefits for surviving spouses even if they remarried, provided that the remarriage occurred after the surviving spouse attained the age of 57. Veterans Benefit Act of 2003, Pub.L. No. 108-183, § 101, 117 Stat. 2651, 2652-53 (2003) (codified at 38 U.S.C.A. § 103(d)(2)(B)). The uncodified provision states: In the case of an individual who but for having remarried would be eligible for benefits under title 38, United States Code, by reason of the amendment made by subsection (a) and whose remarriage was before the date of the enactment of this Act and after the individual had attained age 57, the individual shall be eligible for such benefits by reason of such amendment only if the individual submits an application for such benefits to the Secretary of Veterans Affairs not later than the end of the one-year period beginning on the date of the enactment of this Act. 117 Stat. At 2653. The codified statute, 38 U.S.C.A. § 103(2)(B), states that "[t]he remarriage after age 57 of the surviving spouse of a veteran shall not bar the furnishing of benefits specified in paragraph (5) to such person as the surviving spouse of the veteran," and does not include the provision in Pub.L. No. 108-183 that requires an application for DIC to be submitted before the end of the one-year period after enactment of the Public Law. However, the Board notes that Pub.L. No. 108-183 is controlling law, since statutes at large are legal evidence of the laws. See U.S. Nat'l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 448 (1993). In addition, VA's regulations have been amended to reflect the statutory change. Specifically, 38 C.F.R. § 3.55(a)(10)(ii) states that a surviving spouse who remarried after the age of 57, but before December 16, 2003, may be eligible for DIC compensation under 38 U.S.C.A. § 1311 only if the application for such benefits was received by VA before December 16, 2004. Furthermore, the Court clarified in Frederick v. Shinseki, 24 Vet. App. 335, 342 (2011), that the uncodified provision established an end date (December 15, 2004) for submission of an application for DIC by a remarried surviving spouse who had not submitted an application prior to enactment of the Public Law. However, the Board notes that the Court held, in part, that the provision did not apply to a remarried surviving spouse seeking reinstatement of DIC, which is not applicable in this case. Id. Also, the Board notes that there are other exceptions to the remarriage bar contained in 38 C.F.R. § 3.55(a), such as voided, annulled, or dissolved marriage. The relevant facts in this case are not in dispute. The appellant was born in January 1939. The Veteran and the appellant were married in June 1985. The appellant's marriage to the Veteran was terminated by his death in September 1995. The appellant was remarried in April 2001 at age 62. The appellant's claim for DIC benefits was received by VA in September 2009. Although the appellant was over the age of 57 at the time of her remarriage to her current spouse, her application for DIC benefits was not received by VA prior to December 16, 2004. Therefore, as a matter of law, the appellant is precluded from obtaining DIC benefits. Veterans Benefit Act of 2003, Pub.L. No. 108-183 (2003);38 C.F.R. § 3.55(a)(10)(ii). The Board is without authority to grant benefits to a claimant that has no basis under statutory law. See 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board further notes that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing Office of Personnel Management v. Richmond, 486 U.S. 414, 426 (1990)). While the Board is sympathetic to the appellant's contentions, it is bound by the law, and this decision is dictated by the relevant statutes and regulations. The United States Congress provided an exception to the remarriage bar of a surviving spouse, but "only if the application for such benefits was received by VA before December 16, 2004." 38 C.F.R. § 3.55(a)(10)(ii). The Board can only determine whether the appellant meets all of the requirements of the benefit being sought and, if she is not entitled to the benefit as specified by the statutes enacted by Congress and VA's implementing regulations, the benefit cannot be awarded regardless of the circumstances. In this case, the appellant did not meet all of the requirements for entitlement to DIC benefits; specifically, her submission of an initial application was not received by VA before December 16, 2004. The appellant contends that it is unfair to deny her application for DIC benefits because the presumption of service connection for amyotrophic lateral sclerosis (ALS) only applied to applications for benefits received by VA on or after September 23, 2008, which was the cause of the Veteran's death. See 73 Fed. Reg. 54691 (Sept. 23, 2008); 74 Fed. Reg. 57072 (Nov. 4, 2009). In this regard, the appellant appears to be raising an argument couched in equity. While certainly sympathetic to such an argument, the Board is bound by the law and is without authority to grant benefits on the basis of equity. 38 U.S.C.A. §§ 503, 7104; Harvey, 6 Vet. App. At 425. Additionally, the Board notes that, although the presumption of service connection for ALS was not effective until September 23, 2008, the appellant was not barred from submitting an application for DIC benefits before that date. Service connection could have been established on a direct basis, if the evidence supported such an award, even though ALS was not a presumptive disorder. Thus, there was no bar to the appellant submitting a claim. Also, to any extent the appellant may contend that she should have been provided notice of the requirement to apply for DIC benefits before December 16, 2004, or that she would lose eligibility to those benefits, the Board finds that VA had no duty to provide such notice. See Wells v. Principi, 3 Vet. App. 307, 309 (1992) (holding that there is no requirement on the part of the Secretary to search out and identify potential beneficiaries of new law); Morris v. Derwinski, 1 Vet. App. 260, 265 (1991) ("[R]egulations are binding on all who seek to come within their sphere, 'regardless of actual knowledge of what is in the [r]egulations or of the hardship resulting from innocent ignorance.'") (quoting Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 385 (1947)). In addition, "[t]he Supreme Court has held that everyone dealing with the Government is charged with knowledge of federal statutes and lawfully promulgated agency regulations." Id. (citing Fed. Crop Ins. Corp., 332 U.S. at 385. In addition, the appellant is not eligible for any other exception under 38 C.F.R. § 3.55(a), since she is still married. For these reasons, the Board concludes that the appellant has no legal entitlement to recognition as the Veteran's surviving spouse for DIC benefits. The Court has held that in a case where the law, as opposed to the facts, is dispositive of the claim, the claim 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. See Sabonis. Consequently, the appellant's claim for entitlement to recognition as the surviving spouse of the Veteran for purposes of establishing eligibility for DIC benefits must be denied as a matter of law. ORDER Entitlement to recognition as the surviving spouse of the Veteran for purposes of establishing eligibility for DIC benefits is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs