Citation Nr: 1338512 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 12-33 554 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Whether the Appellant may be recognized as the Veteran's surviving spouse for the purpose of entitlement to VA benefits. WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Appellant has reported that the Veteran had active service from 1981 to 1998. The Veteran died in July 2008 and the Appellant seeks recognition as his surviving spouse for the purpose of entitlement to VA benefits. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 administrative decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied the Appellant's claim of entitlement to VA death benefits because she was not entitled to recognition as the Veteran's surviving spouse for the purpose of entitlement to VA benefits. A Travel Board hearing was held at the RO in Columbia, South Carolina, in July 2013 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. Having reviewed the record evidence, to include the Appellant's July 2013 Travel Board hearing testimony, the Board finds that the issue on appeal is characterized more appropriately as stated on the title page of this decision. Because the Appellant currently lives within the jurisdiction of the RO in Columbia, South Carolina, that facility retains jurisdiction in this appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran and the Appellant were married in 1981 and divorced in 1998; they remained divorced at the time of the Veteran's death. CONCLUSION OF LAW The Appellant is not entitled to recognition as the Veteran's surviving spouse for the purpose of entitlement to VA benefits. 38 U.S.C.A. §§ 101(3), 103(c), 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.1(j), 3.50, 3.52, 3.102 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The VCAA is not applicable to a case where the law, and not the underlying facts or development of the facts, are dispositive. Manning v. Principi, 16 Vet. App. 534, 542-543 (2002); see also Mason v. Principi, 16 Vet. App. 129, 132 (2002). VA will refrain from providing assistance in obtaining evidence where the claimant is ineligible for the benefits sought because of lack of qualifying service, lack of Veteran status, or other lack of legal eligibility. 38 C.F.R. § 3.159(d). As is explained below in greater detail, because she is not entitled to recognition as the Veteran's surviving spouse, there is no legal basis on which the VA benefits sought by the Appellant may be awarded; thus, her claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Appellant claims entitlement to recognition as the Veteran's surviving spouse for the purpose of receiving VA death benefits. Such benefits may be paid to the surviving spouse of a Veteran in certain circumstances; however, the Board must determine as an initial matter whether the Appellant is entitled to recognition as the Veteran's surviving spouse for the purpose of receiving these VA benefits. A "surviving spouse" is defined as (1) a person of the opposite sex in a recognized marriage for VA purposes; (2) who was the spouse of the Veteran at the time of the Veteran's death; (3) who lived with the Veteran continuously from the date of 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 (4) who, except as provided in 38 C.F.R. § 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 himself or herself out openly to the public to be the spouse of such other person. 38 U.S.C.A. § 101(3); 38 C.F.R. § 3.50(b). "Marriage" means a marriage valid under the law of the place where the parties resided at the time of the marriage or the law of the place where the parties resided when the rights to benefits accrued. 38 U.S.C.A. § 103(c); 38 C.F.R. § 3.1(j). A valid marriage may be established by various types of documentary evidence together with the claimant's certified statement concerning the date, place and circumstances of dissolution of any prior marriage, provided that such facts, if they were to be corroborated by the evidence, would warrant acceptance of the marriage as valid. 38 C.F.R. § 3.205(a). In jurisdictions where marriages other than by ceremony are recognized, the marriage may be established by the affidavits or certified statements of one or both of the parties to the marriage, if living, setting forth all of the facts and circumstances concerning the alleged marriage, such as the agreement between the parties at the beginning of their cohabitation, the period of cohabitation, places and dates of residences, and whether children were born as a result of the relationship. This evidence should be supplemented by affidavits or certified statements from two or more persons who know as the result of personal observation the reputed relationship which existed between the parties to the alleged marriage including the periods of cohabitation, places of residences, whether the parties held themselves out as husband and wife, and whether they were generally accepted as such in the communities in which they lived. 38 C.F.R. § 3.205(a)(6). Pertaining to the requirements of 38 C.F.R. § 3.53, regulations provide that there must be continuous cohabitation from the date of marriage to the date of death of the Veteran except where the evidence shows that any separation was due to the misconduct of, or procured by, the Veteran without the fault of the surviving spouse. The statement of the surviving spouse as to the reason for the separation will be accepted in the absence of contradictory information. If the evidence establishes that the separation was by mutual consent and that the parties lived apart for purposes of convenience, health, businesses, or any other reason which did not show an intent on the part of the surviving spouse to desert the Veteran, the continuity of the cohabitation will not be considered as having been broken. Analysis The Board finds that the evidence does not support recognizing the Appellant as the Veteran's surviving spouse for the purpose of entitlement to VA benefits. The record evidence shows that the Veteran and the Appellant were married on June 26, 1981, in Tennessee. This evidence also shows that the Veteran and the Appellant were divorced when the Chancery Court for Montgomery County, Tennessee, granted the Appellant's motion for default judgment and final decree of absolute divorce from the Veteran on May 5, 1998, on the grounds of abandonment by the Veteran. These facts are not disputed by the Appellant. She contends instead that she is entitled to recognition as the Veteran's surviving spouse because, although she had divorced the Veteran in May 1998 because he had abandoned her as early as 1993 and although they were not living together at the time of their divorce, they had started dating again in approximately 2001 and maintained some sort of (undefined) relationship prior to his death in July 2008. She testified to this effect before the Board in July 2013. She also testified in July 2013 that, although she and the Veteran had renewed their relationship prior to his death, they had never lived together again. The Appellant previously asserted in her July 2012 notice of disagreement that, following her divorce from the Veteran, she had remarried "because I needed someone to take care of me." It is not clear from a review of the record whether the Appellant currently is married although the existence of this subsequent marriage also is not disputed by the Appellant. As noted, the criteria for recognition as a surviving spouse for VA purposes includes one who was the spouse of the Veteran at the time of the Veteran's death. See 38 U.S.C.A. § 101(3); 38 C.F.R. § 3.50(b). 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, the Appellant's divorce from the Veteran in May 1998 - a fact that is undisputed in this case - bars her claim of entitlement to recognition as his surviving spouse for VA purposes. 38 U.S.C.A. § 101(3); 38 C.F.R. § 3.50(b)(2). Despite the Appellant's assertions to the contrary concerning her alleged status as the Veteran's surviving spouse, the fact remains that her marriage to the Veteran was terminated by divorce prior to the Veteran's death. The Appellant's divorce from the Veteran precludes her recognition as a surviving spouse under any of the relevant regulations. As for the contentions raised at the hearing before the undersigned Veterans Law Judge that the divorce from the Veteran was necessitated due to his being abusive or abandoning her prior to the divorce, it has not been alleged that the Appellant had been separated from the Veteran due to such abuse rather than being divorced from him (thereby meaning that her marriage to the Veteran had been legally terminated) at the time of his death so as to prevail under 38 C.F.R. § 3.53(a) on the basis of a separation due to the Veteran's misconduct. In summary, the Board finds that the Appellant does not meet the threshold requirements for recognition as the Veteran's surviving spouse under C.F.R. § 3.50 for the purpose of entitlement to VA benefits. Because the law, and not the evidence, is dispositive in this case, the Appellant's claim must be denied as a matter of law. See Sabonis, 6 Vet. App. at 430. ORDER Entitlement to recognition of the Appellant as the Veteran's surviving spouse for the purpose of entitlement to VA benefits is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs