Citation Nr: 1754834	
Decision Date: 11/30/17    Archive Date: 12/07/17

DOCKET NO.  14-10 072	)	DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUES

1.  Entitlement to death benefits as the surviving spouse of the Veteran.

2.  Entitlement to accrued benefits as the surviving spouse of the Veteran. 


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

A. Yaffe, Associate Counsel


INTRODUCTION

The Veteran served on active duty from March 1954 to February 1956.  The Veteran died in May 1999, and the appellant contends that she is the surviving spouse of the Veteran.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.

The Board recognizes that the issue of accrued benefits was not formally certified to the Board; however, it has been discussed by the RO in both the February 2012 rating decision and December 2013 statement of the case (SOC).  Accordingly, the Board includes a discussion of this issue herein. 


FINDINGS OF FACT

1.  The Veteran and the appellant divorced in November 1995.

2.  The Veteran died in May 1999.

3.  An application for accrued benefits was not made within a year of the Veteran's death and there were no claims pending at the time of the Veteran's death.


CONCLUSIONS OF LAW

1.  The criteria for recognition of the appellant as the Veteran's surviving spouse for death benefits are not met.  38 U.S.C. §§ 101, 1310 (2012); 38 C.F.R. §§ 3.50, 3.55, 3.206 (2017).
2.  The criteria for accrued benefits have not been met.  38 U.S.C. § 5121 (2012); 38 C.F.R. §§ 3.3, 3.23, 3.159, 3.1000 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

In this case, neither the appellant nor her representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Death Benefits -Analysis

As applicable to this case, a "surviving spouse" is a person who had a valid marriage to the Veteran, and was the spouse of the Veteran at the time of the Veteran's death.  38 C.F.R. § 3.50(b).  The claimant has the burden to show status as a surviving spouse by a preponderance of the evidence.  Colon v. Brown, 9 Vet. App. 104, 107-08 (1996).

Here, the undisputed fact is that the appellant and the Veteran were divorced at the time of his death.  A November 1995 Judgment of Divorce from the Superior Court of California is of record.  Likewise, the Veteran's May 1999 Certification of Death shows that he was divorced at the time of his death.  No evidence contesting the validity of the divorce is of record.

The appellant has provided the reasons for her divorce from the Veteran.  However, applicable regulations specify that VA will consider the misconduct of, or procured by, the veteran without the fault of the spouse only in cases of separation, and not in cases of divorce.  38 C.F.R. § 3.50(b).  Since the appellant was divorced from the Veteran at the time of his death, she does not qualify as his "surviving spouse."  Id.

Accrued Benefits - Analysis 

Accrued benefits are periodic monetary benefits or monthly benefits (other than insurance and servicemen's indemnity) to which an individual was entitled at death under existing ratings or decisions and under laws administered by the VA Secretary, or those based on evidence in the file at date of death and due and unpaid will, upon the death of such individual, be paid to the surviving spouse or other appropriate party.  38 U.S.C. § 5121.  An application for accrued benefits must be filed within one year after the date of death.  38 C.F.R. § 3.1000(c).

In this case, the appellant did not file a claim for accrued benefits within one year of the Veteran's May 1999 death.  Instead, she filed a claim in January 2012, over 12 years later.  As such, there is no legal basis upon which the appellant's claim for accrued benefits may be granted.  Moreover, the Veteran was not in receipt of any VA benefits and did not have any claim pending before VA at the time of his death.  As the Veteran was not entitled to any unpaid benefits at the time of his death, the appellant, to the extent she may have been among those to whom benefits could have been paid, is not entitled to any such accrued benefits.  Therefore, the appellant's claim must be denied as a matter of law. See 38 C.F.R. § 3.1000; 38 U.S.C. § 5121. 






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ORDER

The appellant is not recognized as the surviving spouse of the Veteran for the purpose of VA benefits, and the appeal is denied.

Entitlement to accrued benefits is denied.



____________________________________________
MICHAEL KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals










Department of Veterans Affairs