Citation Nr: 1337298 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 12-17 727A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUE Entitlement to recognition as the Veteran's surviving spouse for purposes of VA death pension benefits. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from December 1951 to September 1953. He died in April 1992. The appellant is seeking recognition as his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from an October 2011 RO decision. In reviewing this appeal, the Board has reviewed the evidence contained in the Veteran's physical claims file and also in the "virtual," electronic claims file. 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). FINDINGS OF FACT 1. After the Veteran's death in April 1992, the appellant applied for VA death pension benefits based upon the Veteran's wartime service, but such benefits were denied based upon her excessive income. 2. The appellant married her second husband in January 1996; her second husband died in July 2004. 3. The appellant re-applied for VA death pension benefits in April 2011. CONCLUSION OF LAW The appellant cannot be recognized as the Veteran's surviving spouse under VA law governing eligibility for VA benefits. 38 U.S.C.A. § 101, 1311 (West 2002); 38 C.F.R. §§ 3.50, 3.55 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant contends her meager monthly income is less than her monthly mortgage payments and that she only survives due to the generosity of her daughter, which is not in dispute. She asserts that she needs the income which she feels should be provided to her based upon her husband's service to his country. Prior to a determination as to the appellant's entitlement to VA death pension benefits, for purposes of determining eligibility as a claimant, there is a preliminary threshold issue as to whether the appellant qualifies as the Veteran's surviving spouse. A marriage certificate showing marriage between the appellant and the Veteran in May 1954 is of record. A death certificate showing the Veteran's death due to chronic renal failure and pulmonary embolism following fractures of the femur and tibia with complications in April 1992 is of record as well. Curiously, the death certificate identifies another woman as the Veteran's wife. In any event, after the Veteran's death in April 1992, the appellant applied for VA death pension benefits based upon the Veteran's wartime service, but such benefits were denied based upon her excessive income. According to her April 2011 claim for death pension benefits, the appellant remarried in January 1996. Her second husband died in July 2004. Governing law provides that death pension may be paid to the surviving spouse of a veteran if certain requirements are met. 38 U.S.C.A. § 1541. A 'surviving spouse' is defined as a person of the opposite sex who was the spouse of a veteran at the time of his death, who lived with the veteran continuously from the date of marriage to the date of his death (except where there was a separation which was due to the misconduct of, or procured by, the veteran without the fault of the spouse) and, except as provided in section 3.55, has not remarried or has not since the death of the veteran, and after September 19, 1962, lived with another person of the opposite sex and held herself out openly to the public to be the spouse of such other person. 38 C.F.R. § 3.50. While remarriage is generally a bar to eligibility for status as a surviving spouse, there are ten exceptions to that general rule. 38 C.F.R. §§ 3.55(a)(1) to (a)(10) ; see also 38 U.S.C.A. §§ 103(d). The only exceptions which apply to VA death pension benefits are the first two of ten exceptions provided: 38 C.F.R. § 3.55 (1): Remarriage of a surviving spouse shall not bar the furnishing of benefits to such surviving spouse if the marriage: (i) Was void, or (ii) Has been annulled by a court having basic authority to render annulment decrees, unless it is determined by the Department of Veterans Affairs that the annulment was obtained through fraud by either party or by collusion. In this case, there is no indication that the appellant's remarriage was ever found to be void or were otherwise annulled. The appellant has plainly asserted that she was remarried and that her second marriage ended upon the death of her second husband. There is no evidence to the contrary. There is no evidence to suggest any annulment ever occurred. 38 C.F.R. § 3.55 (2): On or after January 1, 1971, remarriage of a surviving spouse terminated prior to November 1, 1990, or terminated by legal proceedings commenced prior to November 1, 1990, by an individual who, but for the remarriage, would be considered the surviving spouse, shall not bar the furnishing of benefits to such surviving spouse provided that the marriage: (i) Has been terminated by death, or (ii) Has been dissolved by a court with basic authority to render divorce decrees unless the Department of Veterans Affairs determines that the divorce was secured through fraud by the surviving spouse or by collusion. Here, the appellant asserts that she remained married to the Veteran until his death in 1992. Although the Veteran's death certificate casts some doubt upon this statement, we accept the appellant's own assertion as truthful, particularly as it goes against her interest in this case. Additionally, it is important that the record contains no documentation of an earlier termination of the appellant's marriage to the Veteran. Again, by her own report, the appellant's second marriage commenced after November 1990 and was terminated by her second husband's death after 1990. As such, this exception is inapplicable. In sum, to receive pension as a widow, the appellant must qualify as a surviving spouse, which is precluded by remarriage. As she reports her own remarriage after the Veteran's death, she may not be recognized as the Veteran's surviving spouse under governing law and regulation. The disposition of this claim is based on the law, and not on the facts of the case, which provides that recognition of the appellant as the Veteran's surviving spouse is legally precluded. As such, her claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). While the Board is sympathetic to the appellant's circumstances, the Board is bound by the applicable statutes and regulations. The provisions of the Veterans Claims Assistance Act 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). ORDER Recognition of the appellant as the Veteran's surviving spouse is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs