Citation Nr: 1338081	
Decision Date: 11/20/13    Archive Date: 12/06/13

DOCKET NO.  13-24 386	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Whether the appellant may be recognized as the surviving spouse of the Veteran for VA benefits purposes, to include entitlement to dependency and indemnity compensation (DIC), death pension and accrued benefits.

REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Shamil Patel, Counsel



INTRODUCTION

The Veteran served on active duty from August 1965 to August 1968.  He died in September 2011.  The appellant claims to be his surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from two decisions by the Department of Veterans Affairs (VA).  In May 2012, the Pension Management Center in Milwaukee, Wisconsin denied the appellant's claim for DIC and death pension benefits.  In February 2013, the Regional Office (RO) in St. Louis, Missouri denied the appellant's claim for accrued benefits.  Both decisions were predicated up determinations that the appellant did not meet the criteria to qualify as the surviving spouse of the Veteran.


FINDING OF FACT

The appellant and Veteran were married from June 1973 to January 1984, and again from November 2010 until the Veteran's death in September 2011.


CONCLUSION OF LAW

The criteria for recognition of the appellant as the Veteran's surviving spouse for purposes of DIC, death pension, and accrued benefits have been met.  38 U.S.C.A. §§ 103, 1102, 1304, 1310, 1311, 1541(West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1(j), 3.50, 3.54, 3.159(d), 3.205, 3.206 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA) outlines procedural assistance VA must provide to claimants in certain cases.  If the VCAA is applicable, the Board must ensure that the required notice and assistance provisions of the law have been properly applied.  In this case, the Board is granting in full the benefit sought on appeal.  Assuming that any error was committed with respect to the duty to notify or the duty to assist, such error was harmless and will not be further discussed.

II.  Decision

DIC benefits may be paid to a surviving spouse, who, with respect to date of marriage could have qualified as a surviving spouse for compensation under any law administered by VA in effect on December 31, 1957, or who was married to the Veteran: (1) Before the expiration of 15 years after termination of the period of service in which the injury or disease which caused the Veteran's death or injury was incurred or aggravated; or (2) for one year or more, or (3) for any period of time if a child was born of the marriage, or was born to them before the marriage. 38 U.S.C.A. § 1102 (West 2002); 38 C.F.R. § 3.54(b) (2012).  Consequently, status as a surviving spouse of the Veteran is a threshold requirement for DIC benefits.

The evidence in this case demonstrates that the appellant and Veteran were married from June 1973 to January 1984, and remarried in November 2010.  As noted above, the Veteran died in September 2011.

The appellant's claims for benefits were denied by the agencies of original jurisdiction because her most recent marriage to the Veteran lasted less than one year.  However, for periods on or after January 1, 1958, where a surviving spouse has been married legally to a veteran more than once, the date of the original marriage will be used in determining whether the statutory requirement as to the date of marriage has been met.  38 C.F.R. § 3.54(e).  In this case, because the appellant and Veteran were originally married in June 1973, that is the appropriate date to be used in determining eligibility, and therefore the appellant has met the criteria for recognition as the surviving spouse of the Veteran.


ORDER

Recognition of the appellant as the Veteran's surviving spouse is granted.



____________________________________________
JOHN Z. JONES
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs