Citation Nr: 1337357 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 09-37 117A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Eligibility for restoration of Dependency and Indemnity Compensation (DIC) benefits for the appellant as the remarried widow of a deceased Veteran. REPRESENTATION Appellant represented by: Catholic War Veterans of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The Veteran had active service in the United States Army from August 1963 to August 1966, including service in Vietnam. He died in June 1995, and the appellant was the Veteran's surviving spouse at the time of his death. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 determination issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Board notes that, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the appellant's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. In September 2012, the Board remanded the case to the RO for the scheduling of a Board hearing. In June 2013, a videoconference hearing was held before the undersigned who is the Veterans Law Judge making this decision and who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102. A transcript of the hearing testimony is in the claims file. FINDINGS OF FACT 1. The appellant was born in March 1950. 2. The appellant and the Veteran were married in June 1974. 3. The appellant's marriage to the Veteran was terminated by his death in June 1995, and she was subsequently awarded DIC benefits, effective in July 1995. 4. The appellant remarried in November 1998, when she was 48 years old, and her DIC benefits were terminated based on her remarriage. 5. The appellant remains married. CONCLUSION OF LAW As a matter of law, the appellant is not eligible for restoration of DIC benefits as the remarried widow of a deceased Veteran. 38 U.S.C.A. §§ 101(14), 103, 1310, 1311 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.5, 3.50, 3.55 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant requests restoration of her DIC benefits. She contends that she is entitled to such a restoration because she is now over fifty-seven years old. She presented testimony to that effect during her June 2013 Board videoconference hearing. The appellant further testified that she is still married to her second husband. VA's Duty to Notify and Assist VA has specified duties to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. VA must notify the appellant of evidence and information necessary to substantiate her claim and inform her whether she or VA bears the burden of producing or obtaining that evidence or information. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA's General Counsel has held that these notice and assistance requirements are not applicable where there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit. The General Counsel reasoned that there was no reasonable possibility that such a claim could be substantiated. VAOPGCPREC 5-2004 (2004). As addressed below, the evidence shows that the appellant was younger than 57 years old when she remarried. 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 notice and assistance requirements 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 notice and assistance requirements have no effect on appeal limited to interpretation of law); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2002) (stating notice and assistance requirements 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). The Merits of the Claim Dependency and Indemnity Compensation (DIC) is a monthly payment made by VA to a surviving spouse, child, or parent due to a service-connected cause of death. See 38 U.S.C.A. §§ 101(14), 1310, 1311; 38 C.F.R. § 3.5. Generally, a surviving spouse means a person who was legally married to a veteran at the time of his or her death, and has not since remarried. See 38 U.S.C.A. § 101(3); 38 C.F.R. § 3.50(b). An amendment to Title 38 of the United States Code, effective January 1, 2004, added an additional exception to the remarriage bar for surviving spouse benefits stating that the remarriage of the surviving spouse of a veteran after age 57 shall not bar the furnishing of specified benefits, such as DIC, to such person as the surviving spouse of a veteran. Pub. L. No 108-183, 117 Stat. 2651, 2652-53 (2003) (codified at 38 U.S.C.A. § 103(d)(2)(B)). VA's regulations have been amended to reflect this statutory change stating that the remarriage of a surviving spouse after the age of 57 shall not bar the furnishing of benefits relating to DIC compensation under 38 U.S.C.A. § 1311. 71 Fed. Reg. 29082 (May 19, 2006) (codified at 38 C.F.R. § 3.55(a)(10)). 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. 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. However, the Court held, in Frederick v. Shinseki, 24 Vet. App. 335, 342 (2011), that the plain language of the uncodified portion of the Public Law 108-83 requiring an application for DIC to be submitted within one year of its enactment (December 16, 2004) does not apply to a surviving spouse seeking reinstatement of DIC benefits. Instead, 38 U.S.C.A. § 5110(g) and 38 C.F.R. § 3.114 permit reinstatements of DIC benefits based upon sua sponte review by the Secretary of VA or upon request by the surviving spouse, with an effective date up to one year earlier than such review or request. Moreover, the Court found that a one-year limitation for requesting reinstatements of DIC benefits is inconsistent with the statutory scheme and purpose of the Public Law 108-83. Finally, looking to the text of Public Law 108-83 itself, the Court found that "had Congress wanted to limit reinstatements of DIC for remarried surviving spouses, as opposed to providing a limited time during which those remarried surviving spouses who had never sought DIC benefits could apply for such benefits, it easily could have done so. . . but did not.". The relevant facts of this case at hand are not in dispute. The appellant was born in March 1950. She married the Veteran in June 1974. Their marriage was terminated by the Veteran's death in June 1995. The appellant was awarded DIC benefits in a rating decision issued in July 1995, effective that same month. A marriage certificate reflects that, in November 1998, the appellant remarried; she was forty-eight years old at the time of her remarriage and she remains married to her second husband. The appellant's DIC benefits were terminated based on her 1998 remarriage. The appellant's current claim for DIC benefits was received by VA in November 2008, when the appellant was fifty-eight years of age. Even though Frederick removed the one year limitation for claims for reinstatement to DIC benefits, the appellant does not meet the necessary criteria. Specifically, while she was remarried before December 16, 2003, she was not 57 years old at the time of her remarriage. Rather, she remarried when she was forty-eight years of age. Thus, she is not a surviving spouse who remarried before December 16, 2003, and after the age of 57 (or 55). See also 38 C.F.R. § 3.55(a)(9). Therefore, the appellant does not meet the requirements for reinstatement of DIC benefits eligibility and cannot be considered to be the Veteran's surviving spouse for the purposes of entitlement to DIC benefits. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (where the law is dispositive, the claim should be denied on the basis of the absence of legal merit). Although recognizing the appellant's belief in her claim, the Board is bound by the applicable statutes and regulations. See 38 U.S.C.A. § 7104(c); 38 C.F.R. § 20.101(a). In addition, the appellant is not eligible for any other exception under 38 C.F.R. § 3.55(a), since she is still married. 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 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 does not meet all of the requirements for entitlement to DIC benefits; specifically, her remarriage before she was 57 years old. The Board has no option but to decide this case in accordance with the applicable law. Thus, the appellant's claim for restoration of DIC benefits must be denied. As previously noted, the Board may not grant a benefit that the appellant is not eligible to receive under statutory law. See Davenport v. Principi, 16 Vet. App. 522 (2002). In other words, Congress enacts federal laws authorizing monetary benefits, and, unless an individual meets all of the requirements of a particular law, he or she is not entitled to the benefit and the benefit cannot be awarded, regardless of the circumstances. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Thus, the Board is unable to find a legal basis for restoration of DIC benefits. Because the appellant's claim fails due to the absence of legal merit or lack of entitlement under the law, the claim must be denied as a matter of law. Id. ORDER Restoration of DIC for the remarried widow of the deceased Veteran is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs