Citation Nr: 1452017 Decision Date: 11/24/14 Archive Date: 12/02/14 DOCKET NO. 12-19 021 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Pension Management Center in Milwaukee, Wisconsin THE ISSUE Whether the appellant may be recognized as the Veteran's surviving spouse for the purpose of entitlement to VA death benefits. ATTORNEY FOR THE BOARD R. Tyson, Associate Counsel INTRODUCTION The Veteran had active service from October 1966 to August 1968. The Veteran died in November 2002. The appellant seeks recognition as the Veteran's surviving spouse for entitlement to VA death pension benefits. She was married to the Veteran, but was divorced from the Veteran at the time of his death. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 administrative decision issued by the Pension Management Center located in Milwaukee, Wisconsin. The claim in its entirety was processed electronically through the "Virtual VA." FINDINGS OF FACT 1. The appellant and the Veteran were married in June 1969, but divorced seven years later. 2. The appellant remarried, but divorced her second husband in February 1989. She never remarried. 3. The Veteran remarried in November 1974 to his second wife, who died in November 1998, leaving the Veteran widowed. He did not remarry. 4. At the time of the Veteran's death in November 2002, the appellant and the Veteran remained divorced from each other, did not remarry each other and could not be considered to have been remarried. CONCLUSION OF LAW The appellant may not be recognized as the surviving spouse of the Veteran for the purpose of entitlement to VA death benefits. 38 U.S.C.A. §§ 101, 103, 1102, 1304, 1541 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.1, 3.5, 3.50, 3.53, 3.205, 3.206 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION She asserts that she is entitled to VA death benefits because she was married to the Veteran during his active duty service, has a child with the Veteran, and did not remarry after her second divorce to an individual other than the Veteran. VA death benefits, including death pension, death compensation and DIC, are payable to a veteran's surviving spouse under certain circumstances. 38 U.S.C.A. §§ 1310, 1541. A "surviving spouse"' is defined as a person of the opposite sex who was the spouse of a veteran at the time of the veteran's death, who (1) 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 (2), except as provided in section 3.55, has not remarried or has not since the death of the veteran and (3) after September 19, 1962, has not lived with another person of the opposite sex and held herself out openly to the public to be the spouse of such other person. 38 C.F.R. § 3.50. These criteria are conjunctive, not disjunctive; thus all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). For VA benefits purposes, a marriage means a marriage valid under the law of the place where the parties resided at the time of the marriage, or the law of the place where the parties resided when the right to benefits accrued. 38 C.F.R. § 103(c); 38 C.F.R. § 3.1(j). The appellant has the burden to establish her status as a rightful claimant. Sandoval v. Brown, 7 Vet. App. 7, 9 (1994). The relevant facts are compiled from documents of record including the Veteran's and appellant's marriage license, the appellant's divorce decree from her second marriage, and the appellant's statements of record including the VA death benefit application. Based on these facts, the appellant is not the surviving spouse of the Veteran. In June 1969, the appellant and the Veteran married in the State of Indiana, until their divorce seven years later. After their divorce, both the Veteran and the appellant married other people. The Veteran remarried in November 1974. His second wife died in November 1998 leaving the Veteran a widower. He did not remarry. On his death certificate, the Veteran's marital status is listed as "widowed." The appellant married her second husband in March 1977, but later divorced him in February 1989. She did not remarry. In determining who is a surviving spouse, the key factor is the relationship between the Veteran and the appellant at the time of the Veteran's death. Here, the fact that the appellant was once married to the Veteran or had a child with the Veteran is irrelevant. At the time of the Veteran's death, the Veteran was considered widowed from his second wife. The appellant was not listed as a surviving spouse on the death certificate. She does not claim that she and the Veteran were remarried at the time of his death or that they reconciled for any time after their divorce. Having been legally divorced from the Veteran at the time of his death, the appellant lost any status she may have held as a lawful surviving spouse. As a result, there is no basis to establish her basic eligibility for VA death benefits. In its adjudication of benefit claims, VA has duties to notify and to assist claimants in developing information and evidence necessary to substantiate their claims. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R § 3.159. However, statutory and regulatory provisions pertaining to VA's duties to notify and to assist do not apply to a claim if resolution of the claim is based on statutory interpretation, rather than consideration of the factual evidence. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). Here, the facts are not in dispute. The appellant is not entitled to the benefits sought as a matter of law. ORDER Entitlement to VA death benefits is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs