Citation Nr: 1406167 Decision Date: 02/11/14 Archive Date: 02/24/14 DOCKET NO. 13-11 705 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to recognition as the surviving spouse of the Veteran for purposes of establishing eligibility for nonservice-connected death pension at the aid and attendance rate. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The Veteran had active service from May 1943 to February 1946. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. On her Form 9 appeal, the appellant requested a Travel Board hearing. Subsequently, in December 2012, the appellant submitted a written withdrawal of her request for the hearing. Therefore, the request for a Board hearing is withdrawn. 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 October 1949. 2. The Veteran died in September 1994. 3. The appellant remarried in 1995, and divorced in June 1996; there is no evidence that the remarriage was void or annulled. CONCLUSION OF LAW The criteria for recognition as the surviving spouse of the Veteran for purposes of eligibility for VA nonservice-connected death pension, to include at the aid and attendance rate, have not been met. 38 U.S.C.A. §§ 101(3), 103, 1521, 1541, 5107 (West 2002); 38 C.F.R. §§ 3.1(j), 3.50, 3.55 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) Under the Veterans Claims Assistance Act of 2000 (VCAA), 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 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In this particular case, however, involving whether the appellant constitutes a surviving spouse for purposes of eligibility for nonservice-connected death pension benefits, because the law and not the facts is dispositive, the Board finds that any error regarding the VCAA is nonprejudicial. As shown below, even if the facts as presented by the claimant are presumed to be true, entitlement to the benefit sought must be denied as a matter of law. Accordingly, the duty to notify and the duty to assist need not be discussed. See Mason v. Principi, 16 Vet. App. 129, 132 (2002) ("[B]ecause the law as mandated by statute, and not the evidence, is dispositive of this claim, the VCAA is not applicable."); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where law, and not evidence, is dispositive, claim should be denied or appeal terminated because of lack of legal merit); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Valiao v. Principi, 17 Vet. App. 229, 231-232 (2003) (failure to provide VCAA notice is nonprejudicial error "[w]here the facts averred by a claimant cannot conceivably result in any disposition of the appeal other than affirmance of the Board decision."); Short Bear v. Nicholson, 19 Vet. App. 341, 344 (2005) (notice error nonprejudicial where facts averred could not result in an award of benefits); Mayfield v. Nicholson, 19 Vet. App. 103, 121 (2005) (lack of prejudice may be established by demonstrating that a benefit could not possibly have been awarded as a matter of law). II. Analysis The Veteran served on active duty from May 1943 to February 1946. A marriage certificate reflects that the Veteran married the appellant in October 1949. A death certificate reflects that the Veteran died in September 1994. The appellant was his widow. She claims entitlement to nonservice-connected death pension at the aid and attendance rate. Pension is a monthly or other periodic payment made by VA to a veteran because of service, age, or nonservice-connected disability, or to a surviving spouse or child of a veteran of a period of war because of the nonservice-connected death of the Veteran. See 38 U.S.C.A. §§ 1521, 1541 (West 2002 & Supp. 2013). The amount of pension actually received is the difference between the recipient's countable income and the maximum annual rate permitted by VA given the recipient's circumstances. Pension is not payable if the recipient's countable annual income exceeds the maximum limitation given the recipient's circumstances as set forth in the legislation. See generally 38 U.S.C.A. §§ 101, 1501 et seq. A "surviving spouse" is generally defined in 38 C.F.R. § 3.50(b) as "a person of the opposite sex 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," who lived with the Veteran continuously until the date of his death, and except as provided for in 38 C.F.R. § 3.55, has not remarried or lived with another person of the opposite sex. Under 38 C.F.R. § 3.55(a)(1), the remarriage of a surviving spouse shall not bar the furnishing of benefits to such surviving spouse if the marriage was (i) void, or (ii) annulled by a court having basic authority to render annulment decrees. Another exception is provided in 38 C.F.R. § 3.55(a)(2) involving marriages terminated prior to November 1, 1990, or terminated by legal proceedings commenced prior to November 1, 1990. Paragraphs 38 C.F.R. § 3.55(a)(3)-(4) and (9)-(10) provide certain other exceptions involving remarried surviving spouses, but which do not apply to claims for nonservice-connected death pension. The appellant has the burden to establish her status as a claimant. Sandoval v. Brown, 7 Vet. App. 7, 9 (1994). The appellant has reported, and it is undisputed, that she remarried in September 1995. A June 1996 Family Court order (St. Louis, Missouri) reflects that the appellant's remarriage was adjudged dissolved. The June 1996 Family Court order does not indicate that the marriage was declared void or was annulled, in fact, the checkbox indicating annulment was not selected by the judge (rather, dissolution was selected). Because the appellant remarried after the death of the Veteran, and because her remarriage was not declared void or annulled by the Family Court, the Board finds that, unfortunately, the criteria for recognition as the surviving spouse for purposes of eligibility for nonservice-connected death pension are not met as a matter of law. Accordingly, as the remarriage of the appellant was not void or annulled by a court having basic authority, she may not be recognized as the surviving spouse of the Veteran for purposes of entitlement to nonservice-connected death pension. See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994). ORDER The appellant may not be recognized as the Veteran's surviving spouse for purposes of receiving VA death pension benefits; the appeal is denied. ____________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs