Citation Nr: 1336278 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 10-43 680 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to recognition as the Veteran's surviving spouse for purposes of establishing eligibility for death pension. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran had active service from December 1969 to February 1975. He died in June 2005, and the appellant is seeking to establish benefits as his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2010 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) Pension Management Center in St. Paul, Minnesota. The appellant's claim has thereafter been handled by the RO in Waco, Texas. In March 2012, the appellant testified before the undersigned at the RO. A transcript of the hearing is associated with the claims file. While the appellant submitted additional evidence during her March 2012 hearing, she also submitted a waiver of RO review of this evidence. Therefore, the Board accepts this evidence for consideration in this appeal. A review of the Veteran's Virtual VA claims folder and Veterans Benefits Management System claims folder reveals only evidence that is duplicative of that which is already contained in the paper claims file. FINDINGS OF FACT 1. The Veteran and the appellant were married in July 1970. 2. The Veteran and the appellant were divorced in June 1988. 3. The Veteran died in June 2005. CONCLUSION OF LAW The criteria for recognition as the Veteran's surviving spouse for purposes of establishing eligibility for death pension have not been met. 38 U.S.C.A. § 101 (West 2002); 38 C.F.R. §§ 3.50, 3.102 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The VCAA has been considered; however, the provisions of the VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts are dispositive in a matter. Manning v. Principi, 16 Vet. App. 534, 542-543 (2002). In the present case there is no legal basis upon which the sought death benefits may be awarded, and the appellant's claim must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Law, Regulations, and Analysis The appellant has applied for death benefits asserting that she is the Veteran's surviving spouse for the purposes of receiving VA death pension. A surviving spouse is defined as a person (a) of the opposite sex; (b) who was the spouse of the veteran at the time of the veteran's death; (c) 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 (d) who has not remarried (or engaged in conduct not applicable here). 38 U.S.C.A. § 101(3); see also 38 C.F.R. § 3.50(b). The record shows that the appellant was of the opposite sex from the Veteran and was married to him in July 1970 and remained married to him until the time of their divorce in June 1988. The Veteran died in June 2005. Since a surviving spouse is defined by law as a person who was the spouse of the veteran at the time of the veteran's death, her divorce from the Veteran 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 was the spouse of a veteran at the time of the veteran's death"); 38 C.F.R. § 3.50(b)(2). Thus, under the general definition of a surviving spouse, once the appellant and the Veteran divorced in June 1988, she no longer had the status of a surviving spouse of the Veteran for purposes of VA benefits. The Board understands the appellant's assertions that she only divorced the Veteran because of his abusiveness towards both her and their children, that she remained a part of the Veteran's life until his death, and that neither of them remarried. The Board does not doubt the appellant's credibility. However, none of these factors affect the determination as to whether she is recognized for VA purposes as the Veteran's surviving spouse. Likewise, the Board recognizes the appellant's assertions that the Veteran would not have been abusive had he not served in the Marine Corps. As such, they would still have been married at the time of the Veteran's death if he had not served. However, again, this is not a basis for recognizing the appellant as the Veteran's surviving spouse for VA benefit purposes. While there is an exception in the regulations for separation due to the misconduct of the Veteran, no such exception applies when the appellant and the Veteran have divorced. The appellant does not dispute that she and the Veteran were no longer married at the time of his death. The facts in this case are not in dispute. As explained above, the appellant's divorce from the Veteran precludes recognition of her as the Veteran's surviving spouse for purposes of the death benefits that she seeks. Consequently, recognition of the appellant as the Veteran's surviving spouse is legally precluded, and her claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). While the Board is sympathetic to the appellant's circumstances, the Board is unable to provide a legal remedy. The Board is bound by the applicable statutes and regulations. ORDER Entitlement to recognition as the Veteran's surviving spouse for purposes of establishing eligibility for death pension is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs