Citation Nr: 1421744 Decision Date: 05/14/14 Archive Date: 05/21/14 DOCKET NO. 12-12 602 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether the appellant is the surviving spouse of the Veteran for the purposes of VA death pension and accrued benefits. 2. Whether the appellant is the surviving spouse of the Veteran for the purposes of dependency and indemnity compensation (DIC) benefits and, if so, entitlement to DIC benefits. ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Merchant Marines from December 1942 to September 1945. He died in May 1976. The appellant claims as the surviving spouse of the Veteran. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Louis, Missouri. The RO originally denied, as a single issue, entitlement to VA death benefits, to include DIC, death pension, and accrued benefits. For reasons to be discussed in greater detail below, this single issue has been separated into two distinct issues. A review of the Virtual VA paperless claims processing system (Virtual VA) reflects that it contains recent VA records and other documents not found within the physical claims folder. These documents have been noted and reviewed by the Board. The issue of entitlement to DIC benefits is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran and appellant married in November 1945. 2. The Veteran, while still married to the appellant, died in May 1976. 3. The appellant remarried in January 1984. 4. The appellant's spouse died in October 1999, and she has not remarried since October 1999. CONCLUSIONS OF LAW 1. The appellant is not entitled to recognition as the Veteran's surviving spouse for the purpose of eligibility for VA death pension and accrued benefits. 38 U.S.C.A. §§ 101, 103 (West 2002); 38 C.F.R. §§ 3.1(j), 3.5, 3.50, 3.55 (2013). 2. The appellant is the Veteran's surviving spouse for the purpose of eligibility for dependency and indemnity compensation (DIC) benefits. 38 U.S.C.A. §§ 101, 103 (West 2002); 38 C.F.R. §§ 3.1(j), 3.5, 3.50, 3.55 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 and 3.326(a) (2013). With regard the appellant's status as a beneficiary under 38 U.S.C.A. §§ 1310 and 1541, VCAA notice is not required because the issue presented is solely one of statutory interpretation and the claim is granted or barred as a matter of law. See Smith v. Gober, 14 Vet. App. 227, 231-232 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002); see also 38 C.F.R. § 3.159(b)(3)(ii) (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d)(3) (VA will refrain from or discontinue assistance with regard to a claim requesting a benefit to which the claimant is not entitled as a matter of law). The pertinent facts regarding the appellant's marital status, date of marriage, date of the Veteran's death, and date of the appellant's subsequent remarriage are not in dispute; instead, resolution of the claim is dependent on interpretation of the applicable laws and regulations pertaining to entitlement to VA death benefits. For this reason, the VCAA notice and assistance provisions are not relevant with regard the issue of appellant's status as an eligible beneficiary under 38 U.S.C.A. §§ 1310 and 1541. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); see also VAOPGCPREC 5-2004. Hence, no further notice or assistance is required to fulfill VA's duties to notify and assist the appellant in the development of the claim. Smith, 14 Vet. App. 227; Dela Cruz, 15 Vet. App. at 143. Recognition as Surviving Spouse The appellant contends that she should be recognized as the Veteran's surviving spouse for purposes of entitlement to VA death benefits, to include DIC, death pension, and/or any accrued benefits. 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). A "surviving spouse" is defined as (1) a person 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). The provisions of 38 C.F.R. § 3.55 address reinstatement of benefits eligibility based upon terminated marriage relationships. 38 C.F.R. § 3.55(a)(1) provides that remarriage of a surviving spouse shall not bar the furnishing of benefits to such surviving spouse if the marriage (i) was void, (ii) or as been annulled by a court having basic authority to render annulment decrees, unless it is determined by the Department of Veterans Affairs that the annulment was obtained through fraud by either party or by collusion. 38 C.F.R. § 3.55(a)(2) provides that on or after January 1, 1971, remarriage of a surviving spouse terminated prior to November 1, 1990, or terminated by legal proceedings commenced prior to November 1, 1990, by an individual who, but for the remarriage, would be considered the surviving spouse, shall not bar the furnishing of benefits to such surviving spouse provided that the marriage (i) has been terminated by death, or (ii) has been dissolved by a court with basic authority to render divorce decrees unless the Department of Veterans Affairs determines that the divorce was secured through fraud by the surviving spouse or by collusion. 38 C.F.R. § 3.55(a)(3) provides that on or after October 1, 1998, remarriage of a surviving spouse terminated by death, divorce, or annulment, will not bar the furnishing of dependency and indemnity compensation, unless the Secretary determines that the divorce or annulment was secured through fraud or collusion. The threshold question that must be addressed in any claim for VA benefits is whether the person seeking the benefit is a proper claimant for the benefit sought. If the appellant is not established as a proper claimant, the claim can proceed no further. The appellant has the burden to establish her status as claimant. Sandoval v. Brown, 7 Vet. App. 7, 9 (1994). Surviving Spouse for Death Pension and Accrued Benefits In the present case, the Veteran is deemed a veteran on the basis of oceangoing service in the Merchant Marines between December 1942 and September 1945. Service of American Merchant Marines in Oceangoing Service during the period from December 7, 1941 to August 15, 1945 is considered active duty for VA benefits purposes. 38 C.F.R. § 3.7(x)(15). The facts of this case are not in dispute. A marriage certificate submitted by the appellant shows that the Veteran and the appellant were married in November 1945. A certificate of death shows that the Veteran died in May 1976 and was married to the appellant at the time of death. Thus, the appellant and the Veteran's marriage was terminated by the death of the Veteran. A marriage certificate submitted by the appellant shows she married J.S. in January 1984. A certificate of death shows that J.S. died in October 1999 and was married to the appellant at the time of death. The appellant has not remarried since that time. Accordingly, because of the initial 1984 remarriage, the appellant does not meet the definition of surviving spouse for the purpose of receiving VA death pension and accrued benefits. See 38 C.F.R. § 3.50(b). The exceptions specified at 38 C.F.R. § 3.55 must be considered, however. Because the appellant remarried in 1984 following the death of the Veteran, and her remarriage ended in October 1999, which is after November 1, 1990, the provisions of 38 C.F.R. § 3.55 that address reinstatement of benefits eligibility do not apply to this case. In that regard, the Appellant does not assert that her January 1984 marriage to J.S. was void, annulled, or that it was terminated by death or divorce prior to November 1, 1990. As such, the Board must find that the appellant lacks basic eligibility for VA death pension and accrued benefits because she is not the surviving spouse of the Veteran for these purposes. 38 U.S.C.A. §§ 101, 103; 38 C.F.R. §§ 3.1(j), 3.5, 3.50, 3.55. The legal criteria governing the status of a deceased Veteran's widow as a surviving spouse are clear and specific, and the Board is bound by them. The appellant asserts that, had she known at the time that her remarriage would affect eligibility for VA benefits, she would not have remarried. The Board finds such an assertion credible; nevertheless, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104 (West 2002 & Supp. 2013); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Appellant remarried subsequent to the death of the Veteran. While that remarriage has subsequently ended, it did not end or terminate prior to November 1, 1990. For these reasons, the Board finds that the criteria for recognition as a surviving spouse for the purpose of receiving death pension and any accrued benefits have not been met. Surviving Spouse for DIC Benefits The one exception regarding recognition as a surviving spouse applicable to the present case is found at 38 C.F.R. § 3.55(a)(3), which states that, on or after October 1, 1998, a remarriage subsequently terminated by death will not bar the furnishing of DIC benefits. 38 C.F.R. § 3.55(a)(3). Thus, at least for the purposes of eligibility for DIC benefits, the appellant may be recognized as the Veteran's surviving spouse, as her remarriage was terminated by death after October 1, 1998. ORDER Eligibility for death pension and accrued benefits is denied. Eligibility for DIC benefits is granted. REMAND DIC Benefits In the decision above, the Board found the appellant was eligible under 38 C.F.R. § 3.55(a)(3) for recognition as the surviving spouse of the Veteran for purposes of receiving DIC benefits. Such a claim was previously denied by the agency of original jurisdiction (AOJ) based on the ineligibility of the claimant, and has not been considered on the merits. As such a claim has not been considered by the AOJ on the merits nor has the record been developed for a merits-based adjudication, remand is warranted. Accordingly, the case is REMANDED for the following action: After undertaking any additional development deemed appropriate, and giving the appellant full opportunity to supplement the record, adjudicate the pending claim of entitlement to DIC benefits in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the appellant should be furnished with a supplemental statement of the case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs