Citation Nr: 1436628 Decision Date: 08/15/14 Archive Date: 08/20/14 DOCKET NO. 11-24 948 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to recognition as the Veteran's surviving spouse for purposes of establishing eligibility for dependency and indemnity benefits (DIC) and death pension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from March 1943 to December 1945. He died in February 1978. The appellant is his widow. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2010 decision of the Salt Lake City, Utah, Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The appellant married the Veteran in November 1947. 2. The appellant's marriage to the Veteran was terminated by his death in February 1978; she was the lawful spouse of the Veteran at the time of his death. 3. The appellant remarried in November 1995 and then divorced in March 1997. CONCLUSION OF LAW The criteria for recognition of the appellant as the Veteran's surviving spouse for purposes of establishing eligibility for DIC and death pension have not been met. 38 U.S.C.A. §§ 101, 103, 1311 (West 2002; 38 C.F.R. §§ 3.50, 3.55 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). There are some claims to which VCAA does not apply, among them claims where a threshold legal criterion is not met, and the law is dispositive. Mason v. Principi, 16 Vet. App. 129. The United States Court of Appeals for Veterans Claims (Court) has held that the VCAA does not affect matters on appeal when the question is limited to statutory interpretation. See Dela Cruz v. Principi, 15 Vet. App. 143 (2001). As is explained in greater detail below, that is the situation with the appellant's claim. Legal Criteria, Factual Background and Analysis The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that each item of evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board will summarize the evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence in the record shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The appellant married the Veteran in November 1947, and remained married to him until he died in February 1978. The appellant reported she married N.J.C. in November 1995. This marriage was terminated by their divorce in March 1997. DIC is a monthly payment made by VA to a surviving spouse, child, or parent due to a service-connected cause of death. See 38 U.S.C.A. §§ 101(14), 1310, 1311; 38 C.F.R. § 3.5. VA death benefits may be paid to a surviving spouse of a veteran if certain requirements are met. See 38 U.S.C.A. § 1541 A "surviving spouse"' is defined as a person who was the spouse of a veteran at the time of his death, who lived with the veteran continuously from the date of marriage to the date of his 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, except as provided in section 3.55, has not remarried or has not since the death of the veteran, and after September 19, 1962, lived with another person and held herself out openly to the public to be the spouse of such other person. See 38 C.F.R. § 3.50. Since a surviving spouse is defined by law as a person who has not remarried, the appellant's remarriage bars her from eligibility for status as the Veteran's surviving spouse. 38 U.S.C.A. § 101(3) (West 2002); 38 C.F.R. § 3.50(b)(2). Thus, under the general definition of a surviving spouse, once the appellant remarried, she no longer had the status of a surviving spouse of the Veteran for purposes of VA benefits. However, although remarriage is generally a bar to eligibility for status as a surviving spouse, there are ten exceptions to that general rule. 38 C.F.R. §§ 3.55(a); 38 U.S.C.A. §§ 103(d), 1311(e). These exceptions are pursuant to legislation which was enacted on June 9, 1998, which amended the law governing the reinstatement of DIC benefits. Transportation Equity Act for the 21st Century, Pub. L. No. 105-178, § 8207, 112 Stat. 107, 495 (1998); 38 U.S.C.A. § 1311(e) (West Supp. 2011). That legislation removed a prior bar to reinstatement under circumstances where the surviving spouse of a veteran remarried, and the remarriage was later terminated. The issue in this claim is therefore whether the appellant qualifies for any of the exceptions in 38 C.F.R. § 3.55. For reasons explained below, the Board concludes she does not. Under 38 C.F.R. § 3.55, the first exception states that the remarriage of a surviving spouse shall not bar the furnishing of benefits to such surviving spouse if the marriage was void or annulled. 38 C.F.R. § 3.55(a)(1) (2013). That exception does not apply because the appellant's remarriage after the Veteran's death was not voided or annulled, but rather was terminated by divorce. The second, fifth and eighth exceptions under 38 C.F.R. § 3.55 allow for a remarried appellant to still be recognized as the Veteran's surviving spouse if the subsequent marriage (or conduct construed as subsequent marriage) was terminated on or after January 1, 1971, but prior to November 1, 1990. In this case, the appellant remarried in November 1995 and divorced in March 1997. Accordingly, those exceptions are inapplicable to the appellant. Exceptions three, four, six and seven under 38 C.F.R. § 3.55 are premised on remarriages occurring on or after October 1, 1998 (exception three and six) and on or after December 1, 1999 (exception four and seven). In this case, the appellant's remarriage was in 1997, prior to the applicable dates for these exceptions to apply. Under exception nine, a surviving spouse who remarried after the age of 55, but before December 6, 2002 (which is the case here), may be eligible for benefits relating to medical care for survivors and dependents, but only if the application for such benefits was received by VA before December 16, 2004. 38 C.F.R. § 3.55(a)(9)(ii). In this case, the appellant's application for benefits was received in November 2007. Accordingly, the appellant does not meet the requirements for exception nine. Finally, under exception ten, for marriages entered into on or after January 1, 2004, the remarriage of a surviving spouse after the age of 57 shall not bar the furnishing of death benefits. 38 C.F.R. § 3.55(a)(10) (2013). Here, although the appellant was over the age of 57 at the time of her marriage subsequent to the Veteran's death, it took place prior to January 1, 2004. Thus, the appellant does not meet the requirements for exception ten. The facts in this case are not in dispute. The appellant qualified as the surviving spouse of the Veteran for VA purposes at the time of his death in February 1978. The appellant, however, remarried in November 1995, and was divorced in March 1997. Despite the fact that the appellant is not currently married, she is no longer considered the surviving spouse of the Veteran as the result of her remarriage. No legal exception is applicable here that would allow the claimant to receive benefits. There is no allegation or evidence that any of the exceptions listed in 38 U.S.C.A. § 103(d) and 38 C.F.R. § 3.55 applies. Therefore, the appellant's remarriage precludes her recognition as the Veteran's surviving spouse for the purposes of the death benefits that she seeks. Consequently, recognition of the appellant as the Veteran's surviving spouse is precluded by law. Therefore, her claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board is sympathetic to the appellant's claim. The Board does not dispute the fact that she was married to the Veteran at the time of his death, and had been so married for many years. The Board also acknowledges she has asserted her second spouse was abusive towards her. Nevertheless, the fact remains that the appellant does not satisfy the legal requirements for recognition as the Veteran's "surviving spouse" for VA death benefit purposes. ORDER Entitlement to recognition as the Veteran's surviving spouse for purposes of establishing eligibility for DIC, death pension, and accrued benefits is denied. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs