Citation Nr: 1338390 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 10-18 165 ) DATE ) ) On appeal from the Department of Veterans Affairs Pension Management Center in St. Paul, Minnesota THE ISSUE Entitlement to Dependency Indemnity Compensation (DIC) based on the appellant's status as surviving spouse of the Veteran. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Eli White, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1965 to November 1967. He died in July 2005. The appellant is a former spouse of the Veteran's. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2009 decision of the Department of Veterans Affairs (VA) Pension Management Center in St. Paul, Minnesota. The appellant previously filed a claim for entitlement to DIC based on her status as the Veteran's surviving spouse in July 2005. In September 2005, the St. Paul, Minnesota Regional Office (RO) denied the claim on the basis that the appellant cannot be recognized as the surviving spouse of the Veteran. The appellant did not appeal the decision. Thus, the appellant's June 2009 claim for DIC currently on appeal is a petition to reopen her previously denied claim. However, as discussed in more detail below, the Board finds that as the law and not the evidence is dispositive, the appellant's petition to reopen her claim for DIC based on her status as surviving spouse must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law). FINDINGS OF FACT 1. The Veteran and the appellant married in July 1971. 2. The Veteran and the appellant were legally divorced in July 1995; the divorce decree for this divorce is final and was entered by a District Court judge. 3. The Veteran died in June 2005. The death certificate listed his marital status as married to P.K.P. CONCLUSION OF LAW The criteria for entitlement to recognition as the surviving spouse of the Veteran, for the purpose of receiving DIC have not been met. 38 U.S.C.A. §§ 101(3), 103, 1310 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.1(j), 3.5, 3.50 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 VA has a duty 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, 3.326(a). Here, however, the notification and assistance provisions are not applicable, as the claim cannot be substantiated as a matter of law. See Sabonis, 6 Vet. App. at 426; VAOPGCPREC 5-2004 (June 23, 2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). II. Merits of the Claim The appellant contends that she is entitled to DIC benefits as the surviving former spouse of the Veteran. Governing law provides that DIC benefits may be paid to the surviving spouse of a veteran if certain requirements are met. 38 U.S.C.A. §§ 1304, 1310, 1311, 1541 (West 2002). VA death benefits may be paid to a surviving spouse who was married to the veteran (1) before the expiration of 15 years after the termination of the period of service in which the injury or disease causing the death of the veteran was incurred or aggravated; (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, 1304, 1541; 38 C.F.R. § 3.54. For VA purposes, a marriage is considered valid under the law of the place where the parties resided at the time of marriage, or the law of the place where the parties resided when the right to benefits accrued. 38 U.S.C.A. § 103(c); 38 C.F.R. § 3.1(j). To be recognized as the Veteran's surviving spouse for the purpose of establishing entitlement to VA death benefits, the appellant must be a person whose marriage to the Veteran meets the requirements of 38 C.F.R. § 3.1(j) and who was the spouse of the Veteran at the time of the Veteran's death. 38 U.S.C.A. § 101(3); 38 C.F.R. § 3.50(b)(1). The appellant must also have lived with the Veteran continuously from the date of the marriage to the date of the Veteran's death except, as provided in 38 C.F.R. § 3.53(a), where there was a separation which was due to the misconduct of, or procured by, the Veteran without the fault of the spouse; and the claimant cannot have remarried since the death of the Veteran and after September 19, 1962, or lived with another person and held himself or herself out openly to the public to be the spouse of such other person. Id.; 38 C.F.R. § 3.53, 3.55 (2013). These criteria are conjunctive, not disjunctive; thus, all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision means that all of the conditions listed in the provision must be met). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipose, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In the present case, copies of the State of Minnesota records, here presumed valid and whose validity is not contested by the appellant, reflect the following: the Veteran and the appellant were married in July 1971; the Veteran and the appellant were divorced in July 1995; the divorce decree for their divorce is final and was entered by a District Court judge of the State of Minnesota; the Veteran died in June 2005; and his marital status at the time of his death was listed on the death certificate as married to P.K.P. In her September 2009 notice of disagreement, the appellant asserts that she divorced the Veteran due to his then undiagnosed posttraumatic stress disorder (PTSD) and associated symptoms. She stated that during their marriage, the Veteran drank heavily and was financially irresponsible, angry, mistrustful, and emotionally distant from his wife and children. The appellant stated she felt she had to end her marriage to the Veteran so as to protect herself and her children both emotionally and financially. In a February 2010 statement, the appellant further provided that the Veteran was physically abusive towards her and their children and was an alcoholic. The claims file additionally includes police department records showing that the Veteran was involved in three incidents of driving under the influence and in several domestic incidents during the course of his marriage to the appellant. The evidence does not show that the July 1995 divorce decree was set aside by a court of competent jurisdiction at any time prior to the Veteran's death, and the appellant has not contended that she was not divorced from the Veteran. Indeed, the appellant fully admits that she divorced the Veteran and that he was remarried at the time of his death. The appellant contends, however, that she should be entitled to DIC benefits because her separation and subsequent divorce from the Veteran was not her fault, but rather due to the Veteran's behavior and service-connected PTSD. In the October 2013 brief submitted by her representative, the appellant relies on Gregory v. Brown, 5 Vet. App. 108 (1993), in furtherance of her contention that because her separation and subsequent divorce from the Veteran was due to his physical and emotional abuse and was not her fault, she is therefore entitled to DIC. This reliance, however, is misplaced, as in that case, no final judgment of divorce was entered prior to the Veteran's death. Gregory, 5 Vet. App. at 110. The Board acknowledges and is sympathetic to the appellant's assertions that the Veteran's conduct during their marriage, and not actions of the appellant herself, led to their separation and divorce; however, the fault of the appellant's separation from the Veteran is not here at issue, nor is any other characteristic of the appellant's valid marriage to the Veteran, except for its termination in divorce. As cited above, the criteria for recognition as a surviving spouse for purposes of entitlement to DIC requires that an appellant was the spouse of the Veteran at the time of the Veteran's death. See 38 U.S.C.A. §§ 101(3), 1310; 38 C.F.R. §§ 3.5, 3.50(b). Though 38 C.F.R. § 3.53(a) provides an exception to the requirement of continuous cohabitation from the date of marriage to the date of death of the Veteran, where such separation was due to the misconduct of the Veteran and was not the fault of the surviving spouse, this exception requires that the parties still be legally married at the time of the Veteran's death, which the appellant and the Veteran were not. 38 C.F.R. §§ 3.50, 3.53(a). Indeed, the undisputed evidence of record shows that the appellant was not married to the Veteran at the time of his death. Thus, the appellant's divorce from the Veteran bars her from eligibility for status as his surviving spouse. Id. The Board finds that the criteria for establishing surviving spouse status are not met, and the appellant is not a proper claimant for the benefit sought. Accordingly, her claim of entitlement to DIC must be denied as a matter of law. See Sabonis, at 430. ORDER Entitlement to DIC based on the appellant's status as surviving spouse of the Veteran is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs