Citation Nr: 1342622	
Decision Date: 12/24/13    Archive Date: 12/31/13

DOCKET NO.  10-36 421A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUE

Whether the appellant qualifies as a surviving spouse for the purposes of receiving benefits under 38 U.S.C. § 1311.


ATTORNEY FOR THE BOARD

Andrew Mack, Counsel


INTRODUCTION

The Veteran served on active duty from December 1965 to October 1967.  He died in August 2000.  The appellant was the Veteran's widow.

This matter was received by the Board of Veterans' Appeals (Board) from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois.  It is on appeal from an August 2009 decision letter.

The Board has not only reviewed the physical claims file but also the file on the "Virtual VA" system to ensure a total review of the evidence. 


FINDING OF FACT

Following the Veteran's death, the appellant remarried before attaining the age of 57.


CONCLUSION OF LAW

The criteria for qualification as a surviving spouse for the purposes of receiving benefits under 38 U.S.C. § 1311 have not been met.  38 U.S.C.A. §§ 1310(a), 1311 (West 2002); 38 C.F.R. §§ 3.5, 3.50, 3.55 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

The appellant asserts that she is entitled to benefits under 38 U.S.C. § 1311 as the Veteran's surviving spouse.

When any veteran dies after December 31, 1956, from a service-connected or compensable disability, the Secretary shall pay dependency and indemnity compensation to such veteran's surviving spouse, children, and parents.  38 U.S.C.A. § 1310(a); 38 C.F.R. § 3.5.  Dependency and indemnity compensation to a surviving spouse is paid according to the provisions of 38 U.S.C. § 1311.    

"Surviving spouse" means a person of the opposite sex who was the spouse of the veteran at the time of the veteran's death and, except as provided in § 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 C.F.R. § 3.50(b)(2).  

It is important for the appellant to understand that under 38 C.F.R. § 3.55, on or after January 1, 2004, the remarriage of a surviving spouse after the age of 57 shall not bar the furnishing of benefits relating to dependency and indemnity compensation under 38 U.S.C. 1311, subject to some regulatory limitations.  38 C.F.R. § 3.55(a)(10)(i).

In this case, as reflected in his death certificate, the Veteran died in August 2000.  As indicated in her August 2009 claim, the appellant was married to the Veteran at the time of his death and remarried in November 2006.

As reflected in her September 2009 notice of disagreement, the appellant asserts that she did not remarry until she was 56 years old.  She has not asserted that she was 57 years old or older when remarried, even though the RO, in a July 2010 statement of the case, informed her that her claim would be reconsidered if she were to submit evidence demonstrating she remarried at the age of 57 or older.  As the record reflects that, following the Veteran's death, the appellant remarried before attaining the age of 57, she does not qualify as a surviving spouse for the purposes of receiving benefits under 38 U.S.C. § 1311.  Therefore, her appeal must be denied.

Finally, under 38 U.S.C.A. § 5103, VA must notify a claimant of the information and evidence not of record that is necessary to substantiate the claim, and of which information and evidence that VA will seek to provide and which information and evidence the claimant is expected to provide.  VA was not required to provide the appellant with such notice in this case, as it is one where entitlement to the benefit claimed cannot be established as a matter of law.  See 38 C.F.R. § 3.159(b)(3)(ii) (2013).  This extends to the situation where a claim cannot be substantiated based on the application of the law to undisputed facts.  See VAOPGCPREC 5-2004; see also Valiao v. Principi, 17 Vet. App. 229, 232 (2003).  As the pertinent facts in this case are undisputed, and the law, not the evidence, is dispositive of this appeal, no further action is required pursuant to the duties to notify and to assist.  See Mason v. Principi, 15 Vet. App. 129 (2002); see also Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (where application of the law to the facts is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought).  

ORDER

The appeal is denied.


____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs