Citation Nr: 1754043 Decision Date: 11/28/17 Archive Date: 12/07/17 DOCKET NO. 11-05 137 ) DATE ) ) On appeal from the Department of Veterans Affairs Milwaukee Pension Center in Milwaukee, Wisconsin THE ISSUE Whether the appellant may be recognized as the Veteran's surviving spouse for VA death benefits purposes. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Mariah N. Sim, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1954 to August 1957, and March 1959 to April 1976, with service in the Republic of Vietnam. Regrettably, the Veteran died in November 2006. The appellant seeks recognition as his surviving spouse. This matter comes to the Board of Veteran's Appeals (Board) on appeal from an April 2009 decision of the Milwaukee, Wisconsin Regional Office (RO) of the Department of Veterans' Affairs (VA). FINDINGS OF FACT 1. The Veteran and the appellant married in Baltimore, Maryland, in August 1962. 2. The Veteran and the appellant divorced in Wayne County, Michigan, in May 1979. 3. The Veteran died in November 2006. CONCLUSION OF LAW The appellant is not entitled to recognition as the Veteran's surviving spouse for the purpose of receiving VA death benefits. 38 U.S.C. §§ 101, 103 (2012); 38 C.F.R. §§ 3.1 (j), 3.5, 3.50 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The provisions of the Veterans Claims Assistance Act of 2000 (VCAA) are not applicable to the instant appeal because this appeal turns on a matter of law and not on the underlying facts or development of the facts. See Manning v. Principi, 16 Vet. App. 534, 542 (2002). The VCAA can have no effect on appeals that are decided on an interpretation of the law as opposed to a determination based on fact. See Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). The Board therefore finds that any deficiency in VA's VCAA notice or development action is harmless error. The Board also notes that the appellant has been appropriately notified of basis for the denial in this case and has had an adequate opportunity to respond. II. Analysis VA Dependency and Indemnity Compensation (DIC) benefits are payable to a surviving spouse who was married to the Veteran: (1) within 15 years of the end of the period of service in which the injury or disease causing the Veteran's death was incurred or aggravated; or (2) one year or more; or (3) for any period of time if a child was born of the marriage, or was born to them before the marriage. 38 U.S.C.A. § 1304; 38 C.F.R. § 3.54(c). Consequently, "surviving spouse" status is a threshold requirement for DIC benefits. For a person to establish recognition as a surviving spouse of a Veteran, there must be evidence of a valid marriage to the Veteran under the laws of the appropriate jurisdiction. See Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). The validity of a marriage is determined based upon the law of the jurisdiction where the parties resided at the time of marriage or when the rights to benefits accrued. 38 C.F.R. § 3.1(j). A "surviving spouse" is defined as a person who was the spouse of a veteran at the time of the veteran's death, and who 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 who has not remarried or (in cases not involving remarriage) has not since the death of the veteran lived with another person 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 . The record before the Board does not contain a marriage certificate; however, the evidence of record indicates the Veteran and appellant were married in Baltimore, Maryland, in August 1962. A Wayne county, Michigan, court order shows that the Veteran and the appellant were legally divorced on May [redacted], 1979. The Veteran's death certificate shows that he died in November 2006. In her October 2008 claim, the appellant indicated that she was the wife and surviving spouse of the Veteran. She indicated the dates of marriage to be August [redacted], 1962 to 1979, when the marriage to the Veteran ended in divorce. She stated that during their marriage, they did not live together continuously due to the Veteran's deployment to Vietnam in 1964. After the deployment, the appellant states that she had no contact with the Veteran until 1975. In a separate letter from October 2008, the appellant stated that she would not be seeking burial benefits for the Veteran, as the Veteran's sister handled his affairs. In this letter, the appellant also stated, "I want to make clear we divorced four years after he retired in 1976." In a November 2008 Statement in Support of Claim, the appellant indicates that the Veteran and her were happily married while living in Aberdeen, Maryland, and that he loved her and his children until his death. The record indicates that the Veteran and the appellant only lived together in Aberdeen immediately following their marriage in 1962, until he deployed to Vietnam two years later. In the appellant's April 2009 Notice of Disagreement, she stated that her divorce from the Veteran came four years after his separation from active service. She stated that due to the mental and physical health issues of the Veteran, stemming from his service in the Republic of Vietnam, their marriage could not be fixed. In a September 2009 letter, the appellant's daughter stated that the Veteran changed after three tours in Vietnam. She indicated that the Veteran kept a shotgun behind a chair and that he threatened the appellant with the shotgun on one occasion. Further, the appellant's daughter stated that the Veteran subjected the appellant to abuse. The letter also asks "would anyone be able to live with that behavior?" suggesting these incidences as reasons for the appellant's divorce from the Veteran. In a June 2010 letter, the appellant requested a status update of her appeal. She also indicated she included a witness letter to indicate why a divorce from the Veteran was necessary. She stated the Veteran owned guns, and would threaten her with them at certain times. As indicated above, in order for an individual to be a "surviving spouse" of a Veteran, they have to be the "spouse" of the Veteran at the time of his death. The issue is not whether the Veteran and appellant were ever married, but whether they were legally married at the time of the Veteran's death in November 2006. Further, the reason for a divorce is unfortunately inconsequential. In this case, the evidence clearly shows that the appellant and the Veteran divorced in 1979 and did not get remarried prior to the Veteran's death. Consequently, the appellant cannot be considered the Veteran's surviving spouse for VA death benefits purposes. 38 U.S.C. § 101 (3); 38 C.F.R. § 3.50 (b). The Board empathizes with the appellant's situation as her testimony indicates that it was abuse and her genuine concern for her safety and her children that led her to divorce the Veteran in 1979. However, the Board is bound to follow the controlling regulations. Because these regulations do not allow for an individual who was divorced from the Veteran at the time of death to be recognized as the surviving spouse, the Board is not able to recognize the appellant as the Veteran's surviving spouse for VA death benefits purposes. Accordingly, the appellant's claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Recognition of the appellant as the Veteran's surviving spouse for VA death benefits purposes is denied. ____________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs