Citation Nr: 1338974 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 12-24 104A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Whether the appellant may be recognized as the Veteran's surviving spouse for Department of Veterans Affairs (VA) purposes. ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran had active service from April 1944 to May 1946. He died in March 2009. This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the Philadelphia, Pennsylvania, Regional Office (RO) which, in pertinent part, determined that the appellant was not the Veteran's surviving spouse for VA purposes. In October 2013, the Board advanced the appellant's claim on the docket on its own motion. The Board has reviewed the physical claims file and both the Veterans Benefits Management System (VBMS) and the "Virtual VA" files so as to insure a total review of the evidence. 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). FINDINGS OF FACT 1. The Veteran and the appellant were married in May 1962. 2. The appellant was legally divorced from the Veteran in March 2002 and did not subsequently remarry him. 3. The Veteran died in March 2009. CONCLUSION OF LAW The appellant is not the Veteran's surviving spouse for VA purposes. 38 U.S.C.A. §§ 101(3), 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.50(b) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The United States Court of Appeals for Veterans Claims (Court) has held that the statutory and regulatory provisions pertaining to VA's duties to notify and to assist do not apply to a claim if resolution of that claim is based on legal interpretation, rather than consideration of the factual evidence. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). In this case, the facts are not in dispute. Resolution of the appellant's appeal is dependent on interpretation of the law and regulations pertaining to who may be considered to a veteran's surviving spouse for VA purposes. As will be shown below, the Board finds that the appellant was divorced from the Veteran and may not be considered as his surviving spouse for VA purposes. As no reasonable possibility exists that further notice or assistance would aid in substantiating this claim, any deficiencies of VCAA notice or assistance are rendered moot. See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2013); Wensch v. Principi, 15 Vet. App. 362, 368(2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). II. Status as Surviving Spouse The appellant advances that while she was legally divorced from the Veteran at the time of his March 2009 demise, she should be considered as his surviving spouse for VA purposes given that their divorce was necessitated by his violent behavior toward her. The appellant's sons have submitted supportive written statements illustrating the Veteran's improper behavior toward the appellant. The term "surviving spouse" means a person who was the spouse of a veteran at the time of the veteran's death and who lived with the veteran continuously from the date of marriage to the date of the veteran's 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 who has not remarried or (in cases not involving remarriage) has not since the death of the veteran, and after September 19, 1962, lived with another person 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). In her January 2012 Application for Dependency and Indemnity Compensation, Death Pension and Accrued Benefits by a Surviving Spouse or Child (Including Death Compensation if Applicable) (VA Form 21-534), the appellant reported that: she had married the Veteran in May 1962; legally divorced the Veteran in March 1982 due to his "gross neglect of family duty;" and did not live continuously with him from the date of their marriage to the date of his death. The appellant, in essence, contends that she deserves to be considered as the Veteran's surviving spouse for VA purposes as it was his fault that they were legally divorced. Notwithstanding the Veteran's behavior, the Board finds that the appellant has not met the statutory requirement that she remain married to the Veteran on the date of his death. This requirement must be met under the statute for the appellant to qualify as the Veteran's surviving spouse. Even if the Veteran were to be found to have committed misconduct during the marriage resulting in their divorce, the appellant would remain ineligible to be considered as the Veteran's surviving spouse for VA purposes. 38 U.S.C.A. § 101(3); 38 C.F.R. § 3.50(b). Accordingly, the benefit sought on appeal is denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994) (where law is dispositive, not evidence, the appeal should be terminated for lack of legal merit or entitlement). ORDER The appellant may not be recognized as the Veteran's surviving spouse for VA purposes. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs