Citation Nr: 1754518 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 13-32 710 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to recognition as the Veteran's qualifying surviving spouse for the purpose of eligibility to Dependency and Indemnity Compensation (DIC) benefits, death pension, and accrued benefits. ATTORNEY FOR THE BOARD Sara Kravitz, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1976 to March 1977. He died in December 2011. The appellant is the former spouse of the Veteran. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. FINDINGS OF FACT 1. The Veteran and the appellant were legally divorced in December 2008; the divorce decree for this divorce is final and was entered by a Circuit Court judge. 2. The Veteran died in December 2011. 3. The evidence does not show that the 2008 divorce decree was set aside by a court of competent jurisdiction due to fraud and misconduct prior to the Veteran's death in 2011, nor does the appellant argue as such. 4. The deceased Veteran's benefits are nonassignable. CONCLUSION OF LAW The criteria for entitlement to recognition as the surviving spouse of the Veteran, for the purpose of receiving DIC, death pension, and accrued benefits have not been met. 38 U.S.C. §§ 101(3), 103, 1310, 5301 (2012); 38 C.F.R. §§ 3.1(j), 3.5, 3.50 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify & Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Here, however, the notification and assistance provisions are not applicable, as the claim cannot be substantiated as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); VAOPGCPREC 5-2004 (June 23, 2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). Analysis The appellant asserts that she is entitled to Dependency and Indemnity Compensation (DIC) benefits, death pension, and accrued benefits. She filed an application for benefits in January 2013. The appellant's claim was denied by way of a decision in May 2013. The RO informed the appellant that her claim was denied because she did not meet the eligibility requirements to receive DIC, death pension, or accrued benefits as a qualifying surviving spouse. The appellant contends that she is entitled to DIC benefits because, while she was in fact legally divorced from the Veteran, the agreed upon Dissolution of Marriage states that if the deceased Veteran has any pensions, IRA's accounts or similar retirement, it should be released to the appellant. See May 2013 Notice of disagreement. When a veteran dies, his or her surviving spouse may be eligible to VA death benefits, to include DIC benefits, death compensation, and death pension. See 38 U.S.C. §§ 1121, 1310, 1541; 38 C.F.R. § 3.50(a). VA DIC benefits are payable to a surviving spouse who was married to a 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. § 1304; 38 C.F.R. § 3.54(c). Consequently, "surviving spouse" status is a threshold requirement for DIC, death pension, and accrued benefits. A surviving spouse for VA purposes is defined as a person whose marriage to a 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; and (1) 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 fault of the spouse; and (2) has not remarried or has not since the death of the veteran lived with another person of the opposite sex and held himself/herself out openly to the public to be the spouse of such other person. See 38 C.F.R. §§ 3.50 (b), 3.53. A surviving spouse may qualify for pension, compensation, or dependency and indemnity compensation under the appropriate circumstances. See 38 C.F.R. § 3.54. The appellant has the burden to establish her status as claimant. Sandoval v. Brown, 7 Vet. App. 7, 9 (1994). In the present case, copies of the state of Illinois records, here presumed valid and whose validity is not contested by the appellant, reflect the following: the Veteran and the appellant were divorced in December 2008; and the divorce decree for their divorce is final and was entered by a Circuit Court judge of the State of Illinois. The evidence does not show that the 2008 divorce decree was set aside by a court of competent jurisdiction at any time prior to the Veteran's death, and the appellant has not contended that she was not divorced from the Veteran. Indeed, the appellant fully admits that she divorced the Veteran and that they never remarried each other and clearly noted such in her January 2013 application for benefits. The appellant contends; however, that she should be entitled to DIC, pension, and accrued benefits because the divorce decree stated retirement funds should be released to her. The copy of the divorce decree submitted has a written note that the issue of pension and retirement distribution would be reserved. As cited above, the criteria for recognition as a surviving spouse for purposes of entitlement to DIC requires that an appellant was the spouse of the Veteran at the time of the Veteran's death. See 38 U.S.C. §§ 101(3), 1310; 38 C.F.R. §§ 3.5, 3.50(b). Indeed, the undisputed evidence of record shows that the appellant was not married to the Veteran at the time of his death. Thus, the appellant's divorce from the Veteran bars her from eligibility for status as his surviving spouse. Id. The Board finds that the criteria for establishing surviving spouse status are not met, and the appellant is not a proper claimant for the benefit sought. To the extent that the appellant argues that she is eligible for benefits based on reservation of pension and retirement disbursement in the divorce decree, the Board notes that any benefits due to a Veteran are expressly nonassignable by law. See 38 U.S.C. § 5301 ("Payment of benefits due or to become due under any law administered by the Secretary shall not be assignable except to the extent specifically authorized by law..."). The regulations in this instance do not provide any mechanism for assignment of VA benefits through a divorce decree, a matter of state law, for VA federal benefits. Accordingly, her claim of entitlement to DIC, death pension, or accrued benefits must be denied as a matter of law. See Sabonis, at 430. ORDER Entitlement to recognition as the Veteran's qualifying surviving spouse for the purpose of eligibility to Dependency and Indemnity Compensation (DIC) benefits, death pension, and accrued benefits is denied. ____________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs