Citation Nr: 1756475	
Decision Date: 12/07/17    Archive Date: 12/15/17

DOCKET NO.  13-33 059	)	DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

Recognition of the appellant as the surviving spouse of the Veteran for purposes of the receipt of death pension benefits.


ATTORNEY FOR THE BOARD

C. Ryan, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1952 to May 1954. At the time of his death, the appellant was divorced from the Veteran.

This matter comes before the Board of Veterans' Appeals (Board) from a February 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Dallas, Texas.


FINDING OF FACT

At the time of the Veteran's death in November 2012, the appellant and the Veteran were divorced.


CONCLUSION OF LAW

The criteria for recognition of the appellant as the surviving spouse of the Veteran for purposes of the receipt of death pension benefits have not been met.


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The appellant seeks death pension benefits. Regrettably, for the following reasons, the Board finds the appellant not eligible for death pension benefits.

A "surviving spouse" is defined as a person whose marriage to the 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; 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, except as provided in 38 C.F.R. § 3.55 (pertaining only to those surviving spouses who since remarried), has not remarried or has not since the death of the Veteran and after September 19, 1962, lived with another person and held himself or herself out openly to the public to be the spouse of such other person. 38 C.F.R. § 3.50 b).

The relevant facts are as follows: the Veteran and the appellant married June 12, 1954 and divorced January 12, 2010. According to statements made by the Veteran to his medical providers, he and the appellant were separated at least fifteen years before they divorced. The Veteran died November 21, 2012; following the Veteran's death, the appellant applied for death pension benefits. The appellant submitted various correspondence to the VA declaring that the Veteran failed to appropriately support her and her five children throughout their marriage so, despite their divorce in 2012, she believed she was eligible for death pension benefits.

Unfortunately, the Board is unable to grant the appellant death pension benefits because she does not fulfill the criteria for surviving spouses under 38 C.F.R. § 3.1 (j) as the appellant and the Veteran, as the appellant admits, were not married at the time of the Veteran's death. The Board regrets the appellant's situation and is very sympathetic to her claims, but is unable to assist her at this time due to the requirements of the law.


ORDER

Entitlement to recognition of the appellant as the surviving spouse of the Veteran for purposes of the receipt of death pension benefits is denied.



____________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs