Citation Nr: 1754885 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 16-52 591 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to recognition as the Veteran's surviving spouse for the purposes of establishing entitlement to Dependency and Indemnity Compensation (DIC) benefits. 2. Entitlement to death pension benefits. 3. Entitlement to accrued benefits. ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran served on active duty from April 1963 to July 1980. He died in November 2006. The appellant is claiming VA benefits as the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2015 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO), Pension Management Center, in St. Paul, Minnesota, which denied the appellant's claims for DIC, death pension, and accrued benefits. FINDINGS OF FACT 1. The appellant married the Veteran in June 1960. 2. The appellant and the Veteran divorced in December 1988. 3. The Veteran died in November 2006. CONCLUSION OF LAW The criteria for recognition of the appellant as the surviving spouse of the Veteran for the purpose of entitlement to DIC, death pension, and accrued benefits have not been met. 38 U.S.C.A. §§ 101(3), 103, 1102, 1304, 1310, 1541, 5107(b) (West 2014); 38 C.F.R. §§ 3.1(j), 3.50, 3.53, 3.54, 3.102, 3.205 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The appellant has not 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 duty to assist argument). Basic Eligibility for VA Death Benefits Only eligible applicants are entitled to VA benefits. Governing law provides that DIC benefits may be paid to the surviving spouse of a veteran if certain requirements are met. 38 U.S.C.A. §§ 1304, 1310, 1311, 1541 (West 2014). VA death benefits may be paid to a surviving spouse who was married to the veteran (1) before the expiration of 15 years after the termination of the period of service in which the injury or disease causing the death of the veteran was incurred or aggravated; (2) for 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. §§ 1102, 1304, 1541; 38 C.F.R. § 3.54. For VA purposes, a marriage is considered valid under the law of the place where the parties resided at the time of marriage, or the law of the place where the parties resided when the right to benefits accrued. 38 U.S.C.A. § 103(c); 38 C.F.R. § 3.1(j). To be recognized as a veteran's surviving spouse for the purpose of establishing entitlement to VA death benefits, the person's marriage to the veteran must meet the requirements of 38 C.F.R. § 3.1(j) and be the spouse of the veteran at the time of the veteran's death. 38 U.S.C.A. § 101(3); 38 C.F.R. § 3.50(b)(1). The surviving spouse must also have lived with the veteran continuously from the date of the marriage to the date of the veteran's death except, as provided in 38 C.F.R. § 3.53(a), where there was a separation which was due to the misconduct of, or procured by, the veteran without the fault of the spouse; and the claimant cannot have remarried since the death of the veteran and after September 19, 1962, or lived with another person and held himself or herself out openly to the public to be the spouse of such other person. Id.; 38 C.F.R. § 3.53, 3.55 (2017). 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 means that all of the conditions listed in the provision must be met). Analysis for Recognition as the Veteran's Surviving Spouse The appellant in this case seeks recognition as an eligible applicant as the Veteran's surviving spouse to obtain VA benefits. The appellant married the Veteran in June 1960. The appellant and the Veteran divorced in December 1988. At the time of the Veteran's death, the appellant and Veteran were not married. The November 2006 Certificate of Death indicated that the Veteran was divorced and the item identifying a surviving spouse was blank. In this case, the facts are not in dispute. Indeed, the appellant does not contend that she was married to the Veteran at the time of his death. Instead, the appellant has repeatedly referred to herself as the Veteran's "divorced surviving spouse" and "former spouse." See February 2016 Notice and Disagreement; see also October 2016 Substantive Appeal. Because the Veteran and the appellant were divorced at the time of the Veteran's death, the appellant cannot be recognized as the Veteran's surviving spouse for purposes of entitlement to VA benefits. 38 U.S.C.A. § 101(3); 38 C.F.R. § 3.50(b)(1). The Board finds that the criteria for establishing surviving spouse status have not been met, and the appellant is not a proper claimant for the benefits sought. Accordingly, the appeals of entitlement to DIC, death pension, and accrued benefits must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to recognition as the Veteran's surviving spouse for the purposes of establishing entitlement to DIC benefits is denied. Entitlement to death pension benefits is denied. Entitlement to accrued benefits is denied. ____________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs